RTP's Fourth Branch Podcast
The Federalist Society
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The Regulatory Transparency Project is a nonprofit, nonpartisan effort dedicated to fostering discussion and a better understanding of regulatory policies.
On RTP’s Fourth Branch Podcast, leading experts discuss the pros and cons of government regulations and explain how they affect everyday life for Americans.
Available episodes
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Mar 9, 2023
Deep Dive 256 - Section 230 Goes to Court: Gonzalez v. Google and the Future of the Electronic Town Square
Social media platforms have emerged as the new “town square” and a key forum for public debate, but some have questioned whether that debate is as open and robust as it should be. On the other hand, some worry that efforts to regulate social media platforms may themselves crimp debate. At the heart of the discussion is Section 230 of the Communications Decency Act. A panel of experts discussed what Section 230 permits and doesn’t permit—a question now before a number of courts, including the U.S. Supreme Court in Gonzalez v. Google.
*Featuring:*
* *Ashkhen Kazaryan, *Senior Fellow, Free Speech & Peace, Stand Together
* *Randolph May,* President, The Free State Foundation
* *Joel Thayer, *President, Digital Progress Institute
* *Moderator: Boyd Garriott*, Associate, Wiley Rein LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Mar 8, 2023
Deep Dive 255 - A Roundtable on Recent Developments at the FTC
Recent months have seen a flurry of notable developments at the Federal Trade Commission, including oral arguments in the high-profile _Axon v. FTC_ and _SEC v. Cochran_ Supreme Court cases, administrative complaints challenging deals between Altria and JUUL and Illumina and GRAIL, and FTC Commissioner Christine Wilson’s announced resignation.
This episode is a live recording of a panel of antitrust law experts examining these developments and debating what might come next at the FTC.
*Featuring:*
* *Debbie Feinstein,* Partner, Arnold & Porter; Former Director, Bureau of Competition, Federal Trade Commission
* *Hon. William Kovacic, *Global Competition Professor of Law and Policy, The George Washington University Law School; Former Chairman, Federal Trade Commission
* *Prof. Richard J. Pierce,* Lyle T. Alverson Professor of Law, George Washington University Law School
* *Hon. Joshua D. Wright,* University Professor and Executive Director, Global Antitrust Institute, Antonin Scalia Law School, George Mason University; Former Commissioner, Federal Trade Commission
* *Moderator: Bilal Sayyed,* Senior Adjunct Fellow, TechFreedom; Former Director, Office of Policy Planning, Federal Trade CommissionVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Mar 8, 2023
Explainer Episode 52 - What Came Next: FDA's Response to the Reagan-Udall Foundation’s December Reports on FDA's Tobacco and Human Foods Pro
In late February 2023, the FDA released its responses to the December 2022 Reagan-Udall Foundation reports on the FDA's Human Foods and Tobacco programs.
In this follow-on explainer podcast, we once again host Jeff Stier to discuss what these initial responses include, what issues they address, and what one might want to watch moving forward.
Featuring:
Jeff Stier, Senior Fellow, Consumer Choice Center and Taxpayers Protection Alliance
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Mar 8, 2023
Deep Dive 254 - The Implications of the FTC's Proposed Ban on Noncompete Agreements
In January 2023, the FTC announced a proposed rule that would ban noncompete agreements across most of the U.S. economy – a move President Biden lauded in his recent State of the Union address. While noncompete clauses have existed for centuries and have traditionally been regulated under state law, they have also become a focal point for the executive and legislative branches of late. The FTC's proposed rule represents a recent effort to shift enforcement, both substantively and procedurally. The proposed rule purports to rely on the Commission's "unfair methods of competition" (UMC) authority under Section 5 of the FTC Act. This is the first time in decades the FTC has sought to engage in a UMC rulemaking, and only the second time it has ever done so.
Questions are already beginning to arise as to not only the substantive benefits of such a ban, but also the FTC's underlying authority to enact this rule. As a threshold matter, the FTC's ability to engage in UMC rulemaking is somewhat unclear – the statutory basis for this authority is hotly disputed and very likely to be challenged. The FTC's assertion that the rule would supersede contradictory state laws is also likely to draw challenges. Moreover, many have raised concerns that the proposed rule – which the FTC argues would immediately impact about 20% of the U.S. workforce – runs afoul of the major questions and nondelegation doctrines. Additionally, there are questions regarding how such a rule would ultimately impact employees, employers, and the workforce more broadly – in particular, whether such a ban is more likely to enhance or impair innovation. Our experts will discuss the genesis of the FTC's proposed ban on noncompete agreements, including the statutory and empirical evidence underpinning the rule, as well as what we can expect in the coming months and years as the FTC moves towards adopting and enforcing the rule.
*Introduction:*
*Svetlana Gans,* Partner, Gibson, Dunn & Crutcher, LLP
*Keynote Address:*
*Rahul Rao,* Deputy Director, Bureau of Competition, Federal Trade Commission
*Panel Discussion:*
*Corbin Barthold, *Internet Policy Counsel and Director of Appellate Litigation, TechFreedom
*Diana Furchtgott-Roth, *Director, Center for Energy, Climate, and Environment and The Herbert and Joyce Morgan Fellow in Energy and Environmental Policy, The Heritage Foundation
*Justin (Gus) Hurwitz,* Professor of Law and the Menard Director of the Nebraska Governance and Technology Center, University of Nebraska College of Law
*Matthew Sipe, *Assistant Professor of Law, University of Baltimore
*Evan Starr, *Associate Professor, Robert H. Smith School of Business, University of Maryland
*Moderator: Elyse Dorsey,* Partner, Kirkland & Ellis LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Mar 7, 2023
Explainer 51 - Beyond Medicaid? Potential Paths Forward to Better Healthcare
Signed into law in 1965, Medicaid has been active for almost 58 years, during which time its scope has fluctuated and many conversations have been had as to what the appropriate reach, means, and aims for the program should be. In this podcast featuring Tom Miller, he lays out a brief summary of how we got to where we are. He highlights the benefits Medicaid has brought as well as some of the downsides he perceives, and lays out a possible path forward to better healthcare that practically addresses the hurdles to healthcare reform legally, financially, and politically.
*Featuring: *
* *Thomas Miller,* Senior Fellow, American Enterprise InstituteVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Feb 17, 2023
Explainer 50 - FTC on Privacy: The Statutory Authority Behind the Plan
Last November, the Federal Trade Commission accepted comments on its proposal to start a rulemaking related to "Commercial Surveillance" - the agency's newly minted term for any and all business use of data about customers. The FTC has for decades sought to protect consumer privacy and data security through case-by-case application of its general consumer protection authority. It also is charged with rulemaking in a few narrow areas of privacy and data security. In practice, the FTC has become the U.S.'s primary privacy and data security enforcer. Now, while congress deliberates on whether and how to adopt a general privacy law, the FTC seeks to fill a perceived gap with agency rules. Does the agency have the authority to do so? What can we learn from the proceeding thus far? What are the agency's likely next steps and will it succeed? Our participants will discuss the proceeding, their participation in it, and what comes next.
*Featuring:*
* *Ashley Baker,* Director of Public Policy, Committee for Justice
* *Neil Chilson,* Senior Research Fellow for Technology and Innovation, Charles Koch InstituteVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Feb 16, 2023
Deep Dive 253 - Litigation Update: AHM v. FDA: Challenging the FDA on “Chemical Abortion Drugs"
In November 2022, the Alliance Defending Freedom (ADF) filed a federal lawsuit in the U.S. District Court for the Northern District of Texas, Amarillo Division, against the United States Food and Drug Administration (FDA) on behalf of the Alliance of Hippocratic Medicine (AHM) and others.
The suit challenges the FDA’s 2000 decision to legalize mifepristone and misoprostol, two drugs often used in conjunction as chemical abortifacients. The petitioners argue that the legalization of these chemical abortion drugs undermines the FDA’s legal obligation to protect the health, safety, and welfare of young girls and women. Further, the petitioners allege the FDA disregarded notable evidence that chemical abortion drugs are more likely to cause more harm and complications than a surgical abortion, and terminated the necessary safeguards for pregnant women and girls who undergo this controversial drug regimen. Finally, the petitioners contend that the FDA allowed these chemical abortion pills to be delivered via mail in violation of long-standing federal laws.
This Litigation Update with Erik Baptist, a litigating attorney for ADF, will provide a current look at this case, what the facts are, how the case is going, and what the possible outcomes and ramifications thereof may be.
Featuring:
Erik Baptist, Senior Counsel, Alliance Defending Freedom
[Moderator] Roger Klein, Faculty Fellow, Center for Law, Science & Innovation, Sandra Day O'Connor College of Law, Arizona State University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Feb 15, 2023
Deep Dive 252 - Cryptocurrency Regulation in the Aftermath of FTX
The collapse of FTX has intensified the debate about how cryptocurrencies should be regulated, including proposed federal legislation. With a string of cryptocurrency failures and tens of billions in losses for investors, increased regulation has become a hot topic. As Bloomberg summarized: “Crypto is squarely in the cross hairs of Washington” and “Oversight of digital assets is among the most pressing issues for US financial watchdogs.”
Should cryptocurrency firms be regulated as banks? Should cryptocurrency assets be regulated as securities or as commodities? If so, who is the right regulator? Do we need new federal legislation? With enhanced financial and risk disclosures, should cryptocurrency firms only be subject to standard commercial law and, if they fail, normal bankruptcy proceedings? These issues will be addressed by this fourth in a continuing series of cryptocurrency webinars presented by the Federalist Society’s Financial Services and E-Commerce Practice Group.
*Featuring:*
* *The Honorable Cynthia Lummis,* United States Senator, Wyoming
* *Todd H. Baker,* Managing Principal, Broadmoor Consulting, LLC
* *Jerry Loeser, *Of Counsel, Winston & Strawn LLP (Retired)
* *Steve Lofchie, *Partner, Financial Services, Fried Frank
* *Alex J. Pollock, *Senior Fellow, Mises Institute
* *Moderator: J.C. Boggs,* Partner, Government Advocacy and Public Policy, King & Spalding Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Feb 13, 2023
Deep Dive 251 – FTC: Cost/Benefit Analysis of Proposed Rules – A Deeper Dive
Although primarily an enforcement agency, the Federal Trade Commission (FTC) has issued a historic number of proposed rules over the past two years. From prohibiting non-compete provisions potentially impacting 30 million employment contracts or privacy and data security rules implicating personal information online, these proposed rules will affect most sectors of the U.S. economy. This panel of experts will explore how a federal agency undertakes the cost-benefit analysis for proposed rules, comparing independent agencies to those subject to OIRA review, and provide practical tips for lawyers and economists working on agency rulemaking comments.
*Featuring:*
* *Dr. Andrew Stivers, *Associate Director, NERA Economic Consulting
* *Paul Ray, *Director, Thomas A. Roe Institute for Economic Policy Studies, The Heritage Foundation
* *Jonathan Wolfson,* Chief Legal Officer and Policy Director, Cicero Institute
* *Paul Metrey,* Senior Vice President, Regulatory Affairs, National Automotive Dealers Association
* *[Moderator] Svetlana Gans, *Partner, Gibson, Dunn & Crutcher, LLPVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Feb 8, 2023
Explainer 49 - Utility Rate Modeling
Energy consumers continue to see rising rates, but how do regulators decide the rate that consumers pay? In this episode, James Coleman and Mark Ellis explain the relationship between federal and state regulators and utility companies, the financing models behind regulated rates, and the incentives created by these models. What are the implications of state-regulated projects? How do utility companies respond, and what are the risks? What is the impact on consumers? In this episode, experts address these questions and more.
*Featuring:*
* *James W. Coleman,* Robert G. Storey Distinguished Faculty Fellow and Professor of Law, Southern Methodist University Dedman School of Law
* *Mark Ellis,* Financial & Regulatory ConsultantVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Feb 8, 2023
Explainer 48 - The FDA & the Practice of Medicine: Possible Regulation of Off-Label Prescriptions
On December 29, 2022, President Biden signed the_ Consolidated Appropriations Act, 2023 _into law. This omnibus law is over 4,100 pages, and, like many omnibus bills, affects a broad range of issues.
According to Dr. Joel M. Zinberg, physician and health care expert, one such issue is the practice of medicine, as a nineteen-line section relating to the authority of the Food & Drug Administration (FDA) may fundamentally change the future viability of off-label prescriptions. Dr. Zinberg joins us in this podcast to explain the Act’s provisions concerning the FDA, the possible implications on the practice of medicine, and possible solutions to the potential pitfalls posed by these new health care provisions.
*Featuring: *
* *Joel Zinberg,* Senior Fellow, Competitive Enterprise InstituteVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular le…
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Feb 6, 2023
Deep Dive 250 - Examining the CFPB’s Targeting of Discrimination in Consumer Finance Through UDAAP
Under the Biden Administration, Consumer Financial Protection Bureau Director Rohit Chopra has dramatically increased the substantive reach of the CFPB’s use of guidance documents and examination and supervision powers. This includes the articulation of a new standard of Unfair, Deceptive, or Abusive Acts or Practices (UDAAP) that includes allegedly discriminatory practices. It also has announced it intends to use “dormant” powers from Dodd-Frank that would allow it to conduct supervisory exams on nonbanks or any fintech it believes is risky. Many critics argue that many of these acts should be conducted through notice and comment rule-making processes and point to similar efforts during the Obama Administration when similar extensive use of guidance was treated as equivalent to a rulemaking for purposes of the Congressional Review Act. A major lawsuit has also challenged this assertion of authority by the CFPB.
In this episode, experts discuss the specifics of the CFPB’s asse…
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Jan 26, 2023
Explainer 47 - The Procedure of Title VI & IX Complaints
Title VI and IX apply to all colleges and universities that accept federal funds, which, as a condition of accepting those funds, agree they will enforce all Federal Civil Rights laws. However, sometimes programs offered by such institutions seem to run afoul of Title VI and IX, and when that happens, a recourse is to file a complaint with the Office of Civil Rights. In this explainer podcast, Dr. Mark Perry, who has filed Title VI and IX complaints against hundreds of colleges and universities across the U.S., joins us to discuss that process. He brings his expertise to give a window into the procedural aspects of this system, what they are, why such complaints may be valuable, and the considerations a potential complainant might want to consider.
For those who would like to learn more, independent of this podcast or RTP, Dr. Perry notes he can be reached at mark.perry@aei.org, or via direct message on Twitter at https://twitter.com/Mark_J_Perry.
*Featuring:*
* *Mark Perry, *Prof…
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Jan 26, 2023
Deep Dive 249 - Litigation Update: Ohio v. Environmental Protection Agency
The EPA has rescinded The Safer Affordable Fuel Efficient Vehicles Rule Part One: One National Program rule. It has reinstated a waiver of Clean Air Act (CAA) preemption for California’s greenhouse gas standards and Zero Emission Vehicle sales mandate. These are some facets to California’s Advanced Clean Car Program.
In _Ohio v. EPA_, now pending before the D.C. Circuit, various industry and state petitioners have challenged EPA’s reinstatement of the waiver as preempted by the CAA; and have argued that Congress has not implicitly authorized it either. Numerous amici have weighed in on this issue as well. The D.C. Circuit soon will hear oral argument in this case, which eventually might make it to the Supreme Court.
Raised by some amici, one of the pertinent issues here is that the federal government is showing favoritism to California in contravention of the Constitution’s equal-sovereignty principle, which the Supreme Court has recognized in a long line of cases (most r…
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Dec 28, 2022
Explainer 46 - The Reagan-Udall Foundation's December Reports on FDA's Tobacco and Human Foods Programs: What the Reports Mean and W
On December 19, 2022, the Reagan-Udall Foundation for the Food and Drug Administration, an independent 501(c)(3) organization created by Congress “to advance the mission of the FDA to modernize medical, veterinary, food, food ingredient, and cosmetic product development, accelerate innovation, and enhance product safety” released the second of two highly anticipated reports on its state of affairs. The first, released December 6, 2022, served as an operational evaluation of the FDA’s Human Foods program, which had struggled significantly during the course of the supply chain issues brought on during the COVID pandemic. The second December 19th, 2022 report covered “certain components of FDA’s Tobacco program,” evaluating operations there. Both were highly anticipated not just because of the serious and pertinent issues they addressed, but because questions circulated concerning how the Foundation is made up of many former FDA high officials, and how the report would rate th…
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Dec 22, 2022
Deep Dive 248 - Creatures of Statute III: Congress’ Responsibility to Answer the Major Questions
The Federalist Society’s Regulatory Transparency Project and Capitol Hill Chapter hosted the third in a lecture series on the administrative state. The subject of this discussion was the major questions doctrine and how Congress may respond to the Supreme Court’s decision in _West Virginia v. EPA._
Arguably unenforced for some time, recent federal court cases have once again raised the specter of nondelegation doctrine. In so doing, cases such as _West Virginia v. EPA _at the Supreme Court, and the 5th Circuit’s decision in _Jarkesy v. SEC_, arguably throws into question the status quo under which administrative agencies have heretofore operated.
In this final event in our co-sponsored luncheon series on the administrative state, experts investigated the impact such cases may have on Congress in terms of lawmaking delegation, and looked to forecast what Congress can expect if SCOTUS continues to enforce the nondelegation doctrine while moving away from former deference doctrine…
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Dec 22, 2022
Deep Dive 247 - Creatures of Statute II: Administrative Agencies and Policymaking
The Federalist Society’s Regulatory Transparency Project and Capitol Hill Chapter hosted the second in a lecture series on the administrative state’s role in policymaking in modern American government.
This second event of our co-sponsored series on the Administrative State focused on the role of the administrative state in policymaking. Through its various roles and capacities, the Administrative state can have great leeway to create policy that has similar effects to rules and laws created through the legislative process but comes to be via different means. Agencies can make rules, issue guidance documents that often carry significant weight, interpret statutes, and enforce their rules. All these can contribute to agencies making policies that have the force of law.
Some argue that this policy-making by non-elected individuals serving in the administrative state is improper and usurps elected officials’ authority. Others contend this is a valuable and necessary part of the Ad…
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Dec 22, 2022
Deep Dive 246 - Creatures of Statute: Administrative Agencies in Practice
The first in a lecture series on how the administrative state functions in modern American government, presented by the Federalist Society’s Regulatory Transparency Project and Capitol Hill Chapter.
This first luncheon featured former “regulations czar” Paul J. Ray, who served as President Trump’s Office of Information and Regulatory Affairs Administrator (OIRA). As OIRA Administrator, Ray oversaw the review of hundreds of regulations, and led efforts on regulatory reform.
The luncheon also featured Boris Bershteyn, a partner at Skadden, Arps, Slate, Meagher, and Flom, LLP. Mr. Bershteyn served as acting Administrator of ORIA in 2012 and 2013. He was also General Counsel of the Office of Management and Budget starting in 2011.
Our moderator was Hon. Stephen Alexander Vaden from the United States Court of International Trade. Before joining the bench, Judge Vaden served as General Counsel of the United States Department of Agriculture. During his nearly four-year tenure as he…
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Dec 21, 2022
Explainer 45 - Telehealth & COVID-19
In this podcast episode, Michael Cannon, Director of Health Policy Studies at Cato Institute and Marisa Maleck, Partner at King & Spalding LLP join us to discuss telehealth regulation - what it is, what happened to it during COVID-19, and what the opportunities and barriers are for future telehealth innovation.
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Dec 21, 2022
Explainer 44 - The Implications of AI Innovation and Regulation
In this podcast, technology and data privacy experts discuss the evolving landscape of artificial intelligence, machine learning, and what these new technologies mean for existing and future policy and technology innovation. Without a clear regulatory framework, differing definitions and taxonomies have been adopted to regulate AI technology. What will future AI trends look like, and what should policymakers prioritize moving forward?
Featuring:
* Jennifer Huddleston, Policy Counsel, NetChoice
* Hodan Omaar, Senior Policy Analyst, Center for Data Innovation
* Adam Thierer, Senior Fellow, R Street InstituteVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Dec 21, 2022
Explainer Episode 43 - An Agenda for Congress
In this episode, Hon. Gail Heriot, discusses her recent article for the New Criterion, An Agenda for Congress, in which she provides recommendations for Congress to adjust existing incentives that provide structural support for race-preferential admissions. Professor Heriot shares her projections for the outcome of Students for Fair Admissions against Harvard and the University of North Carolina, and what the implications of these cases will be for colleges and universities.
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Dec 20, 2022
Explainer 42 - Unlocking Transparency in K-12 Education
Kimberly Hermann, General Counsel for Southeastern Legal Foundation and Tiffany Justice, Co-Founder of Moms for Liberty, share their insights on the interplay of parents, unions, and government regulators. In this episode, learn how "parental rights" have become a growing influence on education reform.
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Nov 18, 2022
Deep Dive Episode 245 - Courthouse Steps Oral Argument: Axon v. Federal Trade Commission
On November 7, the U.S. Supreme Court heard Axon Enterprise, Inc. v. Federal Trade Commission, to decide whether Congress stripped federal district courts of jurisdiction over constitutional challenges to the FTC by granting the courts of appeals jurisdiction over FTC cease-and-desist orders. This panel will discuss key take-aways from the oral argument and implications for administrative litigation at the Federal Trade Commission, and perhaps for other agencies as well.
Featuring:
Ashley Baker, Director of Public Policy, Committee for Justice
Ronald Cass, President, Cass & Associates, PC
Henry Su, Partner, Bradley Arant Boult Cummings LLP
[Moderator] Svetlana Gans, Partner, Gibson, Dunn & Crutcher, LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Nov 7, 2022
Deep Dive Episode 244 - Litigation Update: Helix Energy v. Hewitt
Some employers were surprised by the en banc Fifth Circuit’s December 2021 decision in Helix Energy Solutions Group, Inc. v. Hewitt that a supervisor for an offshore oil company who received approximately $1,000 per day for a total of over $200,000 annually was eligible for overtime pay under the Fair Labor Standards Act.
The Act exempts from overtime pay workers “employed in a bona fide executive, administrative, or professional capacity,” and the oil company argued that a highly compensated supervisor like Mr. Hewitt qualifies for this “EAP” exemption. The en banc Fifth Circuit applied a Department of Labor regulation requiring EAP-exempt employees to have a fixed weekly salary to conclude that, notwithstanding high pay and supervisory duties, Mr. Hewitt was non-exempt because he was paid on a daily rather than weekly basis.
However, that argument has not been accepted across the bench. Judge Jones dissented that the weekly salary rule is inapplicable…
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Oct 31, 2022
Deep Dive 243 - Is the Office of Foreign Assets Control's Sanctioning of Tornado Cash a Threat to the Future of Financial Privacy?
Tornado Cash is an open source, decentralized cryptocurrency tumbler that was introduced in 2019. The service allows users to mix identifiable Ethereum cryptocurrency funds with others, thus obscuring the trail back to the funds original source. On August 8, 2022, the Treasury’s Office of Foreign Assets Control (OFAC) sanctioned Tornado Cash, making it illegal for United States citizens, residents, and companies to receive or send money through the service. OFAC claims that Tornado cash is responsible for laundering more than $7 billion in virtual currencies, including money believed to be stolen by North Korea and criminal groups.
As opposed to sanctioning people, organizations, or particular addresses associated with rogue regimes, OFAC has sanctioned the code of Tornado Cash itself, causing critics to claim that OFAC has exceeded its statutory authority .
In this podcast, experts discuss OFAC’s blacklisting of Tornado Cash, potential litigation from opponents, and the broader…
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Oct 31, 2022
Deep Dive 242 - A Global Energy Crisis and the FERC [Panel Discussion]
In the last few years, the Federal Energy Regulatory Commission (FERC) has emerged from relative obscurity to find itself squarely in the middle of many of today’s most contentious public policy fights. As the agency that regulates wholesale electricity and transmission rates, the Commission faces the tension between the rapid adoption of renewable generation sources and the reliability of the bulk power system. And as the agency that reviews applications to build natural gas pipelines and liquified natural gas export facilities, how should the Commission consider the European energy crisis? Given the “economic and political significance” of these tasks, how should the Commission carry out its mission in light of West Virginia v. EPA?
At a live Regulatory Transparency Project event, following remarks from FERC Commissioner James Danly, an expert panel discussed the present and future challenges facing energy reliability and regulation.
Featuring:
Michael Buschbacher, Counsel, B…
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Oct 31, 2022
Deep Dive 241 - A Global Energy Crisis and the FERC [Keynote Address]
In the last few years, the Federal Energy Regulatory Commission (FERC) has emerged from relative obscurity to find itself squarely in the middle of many of today’s most contentious public policy fights. As the agency that regulates wholesale electricity and transmission rates, the Commission faces the tension between the rapid adoption of renewable generation sources and the reliability of the bulk power system. And as the agency that reviews applications to build natural gas pipelines and liquified natural gas export facilities, how should the Commission consider the European energy crisis? Given the “economic and political significance” of these tasks, how should the Commission carry out its mission in light of West Virginia v. EPA?
At a live Regulatory Transparency Project event, FERC Commissioner James Danly addressed the present and future challenges facing energy reliability and regulation. An expert panel including Michael Buschbacher, Jennifer Chen, Jim Wedeking, and mod…
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Oct 26, 2022
Explainer 41 - Government Obstacles to Over The Counter Medicines
The Goldwater Institute’s Christina Sandefur moderates a discussion with the Cato Institute’s director of health care policy Michael F. Cannon, on the role that the federal government plays in requiring prescriptions for medications. If you would like to read more from Cannon, see his and Jeffrey A. Singer’s white paper, Drug Reformation: End Government’s Power to Require Prescriptions.
Featuring:
Michael F. Cannon, Director of Health Policy Studies, Cato Institute
[Moderator] Christina Sandefur, Executive Vice President, Goldwater Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Oct 21, 2022
Deep Dive 240 - Courthouse Steps Oral Argument: Sackett v. Environmental Protection Agency
One of the longest-standing environmental law challenges is how to define the scope of waters regulated under the Clean Water Act known as “waters of the United States” (WOTUS). After decades of regulatory uncertainty, the Supreme Court has again taken up a case that may provide clarity. On October 3rd, the Court will hear oral argument in Sackett v. EPA, the first case of this new term and the second time the case will be reviewed by the high court. Perhaps this time the Court will definitively determine what is a WOTUS. Will the Court definitively determine what is a WOTUS?
Join us for a discussion on this important case with Damien Schiff (arguing for petitioners), Tony Francois (represented petitioners in the Ninth Circuit), and William Snape (Director of the American University Washington College of Law’s Program on Environment and Energy Law). The panel will be moderated by Hunton Andrews Kurth partner Matt Leopold, who served previously as EPA general counsel…
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Oct 20, 2022
Deep Dive 239 - Energy Security After Ukraine: What are the Challenges and Opportunities for the U.S. and its Allies?
Russia’s invasion of Ukraine shocked the world – and directed renewed attention to the global energy system. Suddenly, the topic of energy security rose to the forefront as consumers across the globe began to feel the impact of the conflict when filling their gas tanks and paying their electricity bills. As Europe struggles to disentangle itself from dependence upon Russian energy sources, the United States and others have directed renewed focus toward their supply chains for both hydrocarbon fuels and renewable power generation. Our panel of energy experts discuss these recent events and consider the legal and policy levers available to the United States and its allies to enhance their energy security.
Featuring:
Prof. James Coleman, Robert G. Storey Distinguished Faculty Fellow and Professor of Law, Southern Methodist University Dedman School of Law
George Fibbe, Partner, Baker Botts, Former Deputy General Counsel, Department of Energy
Moderator: Daniel G. West, Vice President,…
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Oct 12, 2022
Deep Dive 238 - The Future of NEPA Reform
As a condition of his vote for the Inflation Reduction Act, Sen. Joe Manchin demanded space for his own permitting-reform package in the latest spending bill. While his proposed legislation was ultimately pulled over objections to aspects tangential to permitting, interest in permitting reform remains strong. The target of many reformers’ ire is the current interpretation of the National Environmental Policy Act: a 1970 statute designed to ensure that the government gives adequate consideration to environmental impacts before embarking on major actions. While this has had significant benefits for environmental quality, the review process is often long, costly, and subject to aggressive litigation that often stretches for years. Is it time to rewrite portions of NEPA? And, if so, what should those reforms look like?
Featuring:
David Adelman, Harry Reasoner Regents Chair in Law, The University of Texas at Austin School of Law
James W. Coleman, Robert G. Storey Distinguished Faculty F…
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Sep 30, 2022
Deep Dive 237 - Private Rights of Action in Data Policy Settlements
A private right of action, or the ability of individuals to bring lawsuits for violations of a statute, has been a major point of contention in debates over a potential federal data privacy law. This podcast featuring Andrew Kingman (Mariner Strategies), Jennifer Huddleston (NetChoice), and Keir Lamont (Future of Privacy Forum) will dive into the questions surrounding this debate. Is the litigation risk from a private right of action harmful to innovation and small businesses or is it necessary to redress individual concerns? What can policymakers and practitioners learn from state level privacy laws like Illinois’ Biometric Information Privacy Act (BIPA) and the California Privacy Rights Act (CPRA) about the impact of a private right of action?
Featuring:
Andrew Kingman, President, Mariner Strategies LLC
Keir Lamont, Senior Counsel, Future of Privacy Forum
[Moderator] Jennifer Huddleston, Policy Counsel, NetChoice
Visit our website – www.RegProject.org – to learn more, view al…
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Sep 30, 2022
Deep Dive 236 - Sackett v. EPA: How Will the U.S. Supreme Court Define "Waters of the United States?"
One of the most controversial and long-standing environmental issues deals with what waters are regulated under the Clean Water Act. For decades, the EPA and Army Corps of Engineers have struggled to define "waters of the United States" (WOTUS) and the Supreme Court has not been able to provide clarity in its previous WOTUS decisions. Now though, the U.S. Supreme Court's first case of the new term is Sackett v. EPA, which provides the Court another chance to provide some clarity. In this podcast discussion, the lead counsel for the Sacketts, Damien Schiff, and Georgetown University's William Buzbee, delve into the legal issues of the case and its implications.
Featuring:
William W. Buzbee, Professor of Law, Georgetown Law
Damien Schiff, Senior Attorney, Pacific Legal Foundation
[Moderator] Daren Bakst, Senior Research Fellow in Environmental Policy and Regulation, The Heritage Foundation
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect wit…
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Sep 20, 2022
Explainer 40 - FTC's New Strategic Plan and the Future of Agency Action
Ashley Baker and Asheesh Agarwal discuss the FTC's Strategic Plan for 2022 - 2026, which sets out the FTC's priorities over the next five years. Ashley and Asheesh discuss goals that the FTC would like to achieve, their shift from the historically used consumer welfare standard to a public interest standard, and challenges to the FTC's assertion of jurisdiction to keep an eye on.
Featuring:
Ashley Baker, Director of Public Policy, Committee for Justice
Asheesh Agarwal, Consultant, American Edge Project and U.S. Chamber of Commerce
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Sep 12, 2022
Explainer 39 - Tax Exclusions for Employer-Sponsored Health Insurance
In this episode, Michael F. Cannon argues that the federal income tax exclusion of employer-sponsored health insurance is an "accident of history," and has had a significant impact on the American markets for health insurance, medical care, and on the U.S. political system. Read more from Michael Cannon in his article, End the Tax Exclusion for Employer-Sponsored Health Insurance.
Featuring:
Michael F. Cannon, Director of Health Policy Studies, Cato Institute
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
*******
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Sep 9, 2022
Deep Dive 235 - A Discussion on the US-EU Trans-Atlantic Data Privacy Framework
The US-EU Trans-Atlantic Data Privacy Framework, announced in March of this year, is a new agreement governing trans-Atlantic data flows between the United States (US) and the European Union (EU) – specifically data flows from EU countries to the U.S. that contain personal information of EU residents. The new framework is intended to replace the previous Privacy Shield Framework, which the EU Court of Justice found did not provide adequate protection of privacy, as required by the General Data Protection Regulation and other law.
In this podcast, experts discuss whether the new Trans-Atlantic Data Privacy Framework effectively addresses the concerns of the EU Court of Justice providing for a solid legal basis for future Trans-Atlantic data transfers.
Featuring:
Stewart Baker, Partner, Steptoe & Johnson LLP
Theodore Christakis, Professor of International and European Law, University Grenoble Alpes
Peter Swire, Elizabeth and Tommy Holder Chair, Scheller College of Business, Georgia I…
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Sep 2, 2022
Deep Dive 234 - Dobbs and the Potential Implications for Data Privacy
The Supreme Court’s recent abortion decision in Dobbs v. Jackson Women’s Health Organization will no doubt have many ramifications. One of the more unusual questions is the impact that Dobbs might have on data privacy. It has long been the case, for example, that cell phone location data can be used to identify certain personal behavior patterns, such as routine attendance at church. Some are now concerned that location data may be used to identify pregnant women by the locations they visit – potentially exposing them to civil or criminal charges as the underlying substantive abortion law changes. Other women are deleting period tracking apps from their phones for much the same reason. In this podcast, experts explore and debate these issues.
Featuring:
Stewart Baker, Partner, Steptoe & Johnson LLP
Jane Bambauer, Dorothy H. and Lewis Rosenstiel Distinguished Professor of Law, The University of Arizona James E. Rogers College of Law
Danielle Citron, Jefferson Scholars Foundation…
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Aug 26, 2022
Deep Dive 233 - Litigation Update: CFER v. Alameda & Raak Law v. Gast
In the name of equality, some state and local governments seem to have implemented race-and-gender-based legal quotas in practice if not in name. Wen Fa, an attorney who represents plaintiffs challenging the legality of these laws and policies provides a litigation update on two of his latest cases: CFER v. Alameda County, and Raak Law v. Gast.
In CFER v. Alameda County, plaintiffs are Oakland-area taxpayers who allege that county set-asides for Minority Business Enterprises violate federal and California constitutional prohibitions on racial discrimination.
Meanwhile, in Raak Law v. Gast, the plaintiffs are prospective candidates for the Iowa Judicial Nominating Commission. They contend Iowa law establishes a gender quota by staggering the two commissioners' elections and requiring that of the two commissioners from each district, one be female and the other be male.
Listen for a Litigation Update on these two fascinating cases, as Wen Fa reviews the facts and law of these cases, a…
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Aug 22, 2022
Explainer 38 - High Energy Prices, Public Policy & Possible Solutions
Energy law expert, Professor James W. Coleman, shares his analysis of the factors causing high energy prices - including public policy on the federal, state, and local level - and suggests some policies that might alleviate high energy prices.
Featuring:
James W. Coleman, Robert G. Storey Distinguished Faculty Fellow and Professor of Law, Southern Methodist University Dedman School of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
*******
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Aug 18, 2022
Deep Dive 232 - The Implications of Jarkesy v. SEC for Administrative Tribunals
In May, the U.S. Fifth Circuit Court of Appeals vacated a decision of the Securities and Exchange Commission that hedge-fund manager George Jarkesy had committed securities fraud. The case, Jarkesy v. SEC, stuck down an important enforcement provision of Dodd-Frank and represents a potential strengthening of nondelegation and unitary executive principles. As a consequence, it could have far-reaching implications that go far beyond the securities laws.
The panel held that the SEC had violated the defendant’s 7th amendment right to a trial by jury because fraud is not a “public right” claim triable by administrative tribunal but a traditional claim that must be tried by a court. The panel also held that the law giving the SEC authority to choose between court trials and administrative trials of such claims constituted an unconstitutional delegation of legislative authority, in violation of the nondelegation doctrine. Finally, the court chipped away at the SEC’s independent statu…
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Aug 17, 2022
Deep Dive 231 - West Virginia v. EPA and the Major Questions Doctrine
In the historic decision of West Virginia v. EPA, the Supreme Court held that the Clean Air Act doesn’t authorize EPA to force America’s electricity sector to switch to renewable sources. The Court invalidated the Obama-era Clean Power Plan, which would have limited the total allowable greenhouse gas emissions of each state’s utility sector under the banner of “performance standards” for power plants. That was the regulatory strategy the EPA had pursued for cutting emissions from electricity generation. Consequently, the decision closes the window on the most viable regulatory route for sweeping climate action by federal agencies without a clear congressional mandate, while raising the bar still higher for options such as NAAQS for greenhouse gases.
The decision’s linchpin was the Court’s holding that the Obama Administration’s novel interpretation of a 50-year old statutory provision could not be used to support the broad new powers that EPA had claimed for itself in…
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Aug 11, 2022
Deep Dive 230 - Who Is Regulating the Regulators?
In the Executive Office of the President is a small office that most people outside the Beltway have never heard of. The Office of Information & Regulatory Affairs (OIRA) reviews agencies' draft regulations, public information requests, surveys, etc. Across administrations - both Republican and Democratic - it has served as a check on excessive administrative zeal. The Joe Biden administration has yet to nominate someone to head the office.
Susan Dudley and Paul Ray served as the presidentially appointed administrators of the office in the George W. Bush and Donald Trump administrations, respectively. They shared their perspectives on the importance of this "obscure but powerful" office, and what the lack of a confirmed administrator means for the executive branch and its agencies.
Featuring:
Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
Paul Ray, D…
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Jul 21, 2022
Deep Dive 229 – Overcoming the Challenges to Clean Infrastructure
On November 15, 2022, President Biden signed the Infrastructure Investment and Jobs Act. On May 11, 2022, the White House released the Permitting Action Plan, to "accelerate and deliver infrastructure projects on time, on task, and on budget."
The infrastructure bill represents a major public investment in infrastructure development. And yet significant obstacles to infrastructure development remain. Does the infrastructure bill help overcome some of those obstacles? How does the Permitting Action Plan address those obstacles? How can the federal government work with states, localities, tribes and territories to overcome these challenges?
In this webinar, energy policy experts discussed these questions and more.
Featuring:
- Edward Boling, Partner, Perkins Coie LLP
- Alex Herrgott, President & CEO, The Permitting Institute
- [Moderator] Mario Loyola, Senior Fellow, Competitive Enterprise Institute
Visit our website – www.RegProject.org – to learn more, view all of our content,…
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Jul 12, 2022
Explainer 37 – The Defense Production Act and the APA
In this episode, J. Kennerly Davis, Jr., former Deputy Attorney General for the Commonwealth of Virginia, discusses the historical origin of the Defense Production Act, the powers the Act gives to the president, and recent presidents' invocation of the Act in pursuit of public policy objectives.
Featuring:
- J. Kennerly Davis, Jr., Former Senior Attorney, Hunton Andrews Kurth LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Jul 6, 2022
Deep Dive 228 – Does the Federal Energy Regulatory Commission (FERC) Have Authority To Regulate the Climate?
The Biden administration has pledged to meet what it calls "the accelerating threat of climate change" with a wide-ranging campaign to discourage the production and use of fossil fuels in order to control the emission of carbon dioxide and other greenhouse gases said to be the principal cause of global warming. The White House has directed regulatory agencies and departments across the executive branch to "tackle the climate crisis." The administration has set a goal to eliminate carbon dioxide emissions from the electric power sector by 2035.
The Federal Energy Regulatory Commission, or FERC, is an independent regulatory agency whose enabling statutes include the Federal Power Act and the Natural Gas Act. FERC's statutory responsibilities include regulation of the transmission and wholesale sale of electricity in interstate commerce, and authorization of proposals for the construction and operation of interstate natural gas pipelines and storage facilities.
Doing its part to tackle…
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Jul 1, 2022
Deep Dive 227 – Crypto Wars: Balancing Privacy versus National Security
Senior officials in the Administration have expressed concern about cryptocurrencies being used for criminal activity and undermining the dollar as the global reserve currency. These concerns have been heightened with the Russian invasion of Ukraine, evasion of sanctions including North Korean sanctions, cyberattacks, and ransomware. Others contend that blockchain transactions are easier to trace than physical cash, and that the Administration's concerns are exaggerated and could stifle innovation. China has banned cryptocurrencies and developed its own central bank digital currency (CBDC). It appears that the digital yuan will be used by the Chinese government for surveillance purposes to closely monitor personal transactions and behavior. A number of other regimes, including Canada, have used the banking and monetary system to silence dissidents. Some say that dissidents and citizens in countries that have unstable fiat currencies have turned to bitcoin and other cryptocurrencies to…
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Jun 30, 2022
Deep Dive 226 – Due Process Protections in Agency Enforcement Actions
In February 2019, then General Counsel of the Department of Transportation (DOT), Steven Bradbury, issued a memo later dubbed the "Bradbury Memo" that addressed concerns about civil enforcement abuse at the agency. Parts of the memo were subsequently made into binding DOT rules. DOT asserted that these rules were designed to protect the due process rights of those who were the subject of DOT enforcement actions, including a requirement that the agency disclose all exculpatory evidence to those targeted by civil enforcement and the prohibition of "fishing expedition" investigations without sufficient evidence to support a violation.
On April 2, 2021, DOT rescinded these rules without the opportunity for public comment. Thereafter Polyweave Packaging Inc., a company that had been issued a civil penalty order by DOT over alleged regulatory violations, filed suit against DOT claiming the agency violated its due process rights by revoking the Bradbury Memo rules.
The U.S. District Court f…
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Jun 28, 2022
Deep Dive 225 – State Constitutions and Individual Liberty: State or Federal Government as Primary Custodian of Individual Rights?
On June 23, 2022, David A. Carrillo, Christina Sandefur, Robert F. Williams and moderator Braden Boucek joined us to debate the different purposes and rights guarantees within state constitutions and the federal constitution. What are the federalism implications of an increased focus on state constitutional rights, if that's really the trend? What does the map of states look like if some federal liberties roll back, and does the distribution depend on which rights roll back or expand. These topics and more were explored by this excellent panel of knowledgeable state constitutional law experts.
Featuring:
- David A. Carrillo, Lecturer in Residence and Executive Director, California Constitution Center, University of California, Berkeley, School of Law
- Christina Sandefur, Executive Vice President, Goldwater Institute
- Robert F. Williams, Distinguished Professor of Law and Director, Center for State Constitutional Studies, Rutgers University of School of Law
- [Moderator] Braden Bouce…
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Jun 22, 2022
Deep Dive 224 – Regulating the New Crypto Ecosystem: Necessary Regulation or Crippling Future Innovation?
Cryptocurrency. Decentralized finance. Nonfungible tokens. Once only experts on the cutting edge of financial services were familiar with these terms. Now, with the emergence of digital assets within the global financial system, crypto, DeFi, and NFTs are becoming part of the mainstream financial services lexicon.
The rapidly emerging crypto ecosystem faces uncertainty within a regulatory regime designed for very different institutions and securities. In response, on March 9, 2022, President Biden issued an executive order, "Ensuring Responsible Development of Digital Assets," which ordered agencies to submit policy recommendations based upon multiple principles such as: providing consumer protection, ensuring U.S. financial system stability, mitigating systemic financial risk, responsibly developing digital assets, and examining the creation of a U.S. Central Bank Digital Currency (CBDC). Supporters of increased financial regulation over cryptocurrency see this as a necessity to prov…
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Jun 22, 2022
Deep Dive 223 – Regulating the New Crypto Ecosystem: SEC Commissioner Hon. Hester M. Peirce
Cryptocurrency. Decentralized finance. Nonfungible tokens. Once only experts on the cutting edge of financial services were familiar with these terms. Now, with the emergence of digital assets within the global financial system, crypto, DeFi, and NFTs are becoming part of the mainstream financial services lexicon.
The rapidly emerging crypto ecosystem faces uncertainty within a regulatory regime designed for very different institutions and securities. In response, on March 9, 2022, President Biden issued an executive order, "Ensuring Responsible Development of Digital Assets," which ordered agencies to submit policy recommendations based upon multiple principles such as: providing consumer protection, ensuring U.S. financial system stability, mitigating systemic financial risk, responsibly developing digital assets, and examining the creation of a U.S. Central Bank Digital Currency (CBDC). Supporters of increased financial regulation over cryptocurrency see this as a necessity to prov…
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Jun 21, 2022
Deep Dive 222 – The Return of Supplemental Environmental Projects
On May 5, the United States Department of Justice (DOJ) announced a new "Comprehensive Environmental Justice Strategy." One piece of this new strategy was an Interim Final Rule reintroducing the use of Supplemental Environmental Projects (SEPs) in environmental enforcement action settlements.
As defined by the Biden administration, SEPs are "local projects that defendants can agree to undertake as part of an enforcement case settlement to help rectify environmental violations." These projects were outlawed under the Trump DOJ due to concerns that their use expands DOJ discretionary authority beyond its statutory limits. The Biden administration, however, argues that "SEPs help to fulfill the goals of the underlying statutes being enforced and can provide important environmental and public health benefits to communities that have been harmed by environmental violations."
On June 15, 2022, three executive branch veterans with a range of views on the issue joined us for a virtual discus…
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Jun 15, 2022
Deep Dive 221 – A Discussion on Occupational Licensing feat. Utah Gov. Spencer Cox
On June 7, 2022, the Regulatory Transparency Project hosted a live discussion on occupational licensing via Twitter Spaces.
Utah Governor Spencer J. Cox opened the program with remarks on licensing reforms his state has recently pursued, and an expert panel featuring Jon Gabriel, Scott Lincicome, Colin Mortimer, and moderator Shoshana Weissmann then broke down the Governor’s remarks and discussed the issue more broadly.
Featuring:
- Spencer J. Cox, Governor, State of Utah
- Jon Gabriel, Editor-in-Chief, Ricochet
- Scott Lincicome, Director, General Economics and the Herbert A. Stiefel Center for Trade Policy Studies, Cato Institute
- Colin Mortimer, Director, Center for New Liberalism
- [Moderator] Shoshana Weissmann, Senior Manager of Digital Media and Fellow, R Street Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Jun 2, 2022
Deep Dive 220 – The Government’s Arms Around Cryptocurrency: Hug or Stranglehold?
As the cryptocurrency industry grows, state and federal governments are considering how that industry should be regulated. The President has directed the Secretary of the Treasury to report soon on the issues involved. A draft bill that would regulate stablecoins has been released in the U.S. Senate. Meanwhile, states are competing with one another to adopt regulatory laws that may attract cryptocurrency firms to their welcoming, but taxing, arms striving for economic growth.
Will regulation be designed to avoid discouraging innovation in a highly creative environment? Fears have been expressed that unregulated cryptocurrency could theoretically present systemic risk, and consumers may need to be protected–particularly in light of the recent collapse of the Luna cryptocurrency and its related Terra stablecoin. Some believe that regulation may be an opportunity to include those presently unserved by the banking system. Complicating this already complicated picture may be rivalry amon…
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May 19, 2022
Explainer 36 – Restrictions on Direct Car Sales
In this episode, Adam Thierer interviews Professor Daniel Crane regarding state restrictions on direct car sales and their implications for automobile markets, including the antitrust concerns they may raise.
Featuring:
- Daniel Crane, Frederick Paul Furth Sr. Professor of Law, University of Michigan Law School
- [Moderator] Adam Thierer, Senior Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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May 16, 2022
Tech Roundup 17 – Governor Doug Ducey on Tech Policy and Innovation
Eight years after he was first sworn in, Arizona Governor Doug Ducey will leave office in January 2023 due to the state's limit of two consecutive terms. In this episode, Governor Ducey joined tech policy experts Brent Skorup and Adam Thierer to discuss initiatives aimed at boosting innovation Arizona has launched during his time in office. Their conversation covered regulatory sandboxes, occupational licensing reform, autonomous vehicle policy, and much more.
This episode was co-sponsored by the Mercatus Center at George Mason University.
Featuring:
- Doug Ducey, Governor, State of Arizona
- Brent Skorup, Senior Fellow, Mercatus Center, George Mason University
- [Moderator] Adam Thierer, Senior Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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May 5, 2022
Tech Roundup 16 – The Catawba Digital Economic Zone
In February 2022, the Catawba Nation of South Carolina voted to approve the first tribal digital economic zone in the United States. This "Catawba Digital Economic Zone" includes an independent regulatory framework and commercial code, which its organizers intend to utilize to attract financial technology firms to the Zone as online "ecorporations."
In this episode, Catawba Digital Economic Zone CEO Joseph McKinney joined tech policy expert Ryan Hagemann to discuss the Zone and its novel regulatory framework.
Featuring:
- Joseph McKinney, CEO, Catawba Digital Economic Zone
- [Moderator] Ryan Hagemann, Co-Director, IBM PolicyLab
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Apr 27, 2022
Deep Dive 219 – Four Years Later, Did the “New Madison Approach” to IP and Antitrust Promote Innovation?
In 2018, then-Assistant Attorney General Makan Delrahim announced with great fanfare the "New Madison Approach" to intellectual property and antitrust disputes, rejecting the application of antitrust law to licensing disputes involving Standards Essential Patents (SEPs) and announcing that SEP holders should be entitled to injunctive relief like any other patent holder. Many patent holders cheered this development, particularly after years of perceived weakening of their rights as patent holders. They celebrated this new policy as supportive of innovation and technology licensing. Others argued that this new approach would lead to hold-up abuses by SEP holders in licensing negotiations, or that hold-out behaviors by licensees were overstated. They argued that this would only spark additional costly litigation.
As the current administration continues to reevaluate its antitrust policies and rolls back some "New Madison" policies, an expert panel discussed the impact of these policies,…
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Apr 26, 2022
Explainer 35 – Why Was the CDC's Travel Mask Mandate Struck Down?
On April 18, Judge Kathryn Kimball Mizelle of the United States District Court for the Middle District of Florida vacated the Centers for Disease Control's mask mandate for public transportation.
Health law and policy expert Joel Zinberg joined the podcast to break down the ruling and examine the strategy behind the Department of Justice's decision to appeal it without requesting a stay.
Featuring:
- Joel Zinberg, Senior Fellow, Competitive Enterprise Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Apr 19, 2022
Deep Dive 218 – A Discussion on Stablecoins
Stablecoins are unique types of digital tokens that have emerged out of the cryptocurrency revolution and have taken center stage in the debate about crypto regulation. Tied to the value of an asset or fiat currency such as the dollar, stablecoins were initially created to ease the trade between different cryptocurrencies and crypto exchanges. Yet they have taken on innovative and beneficial new uses that both increase financial inclusion at home and provide vital assistance to those facing oppression and financial instability, as some argue that the situation in Ukraine demonstrates.
But as stablecoins gain prominence, concerns have arisen over risks they might pose to the financial system. Some, such as Senate Banking Committee Ranking Member Pat Toomey, have argued for light-touch regulation for stablecoin issuers that would simply require disclosure of reserves and redemption policies. Others have called for strict bank-like regulation on stablecoins with reserve requirements that…
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Apr 15, 2022
Deep Dive 217 – The Separation of Powers, From Washington to Sacramento
Are state governors subject to the same separation of powers restrictions as the federal president?
Expanding on a Regulatory Transparency Project panel discussion on emergency executive power during the pandemic, this event featured experts engaging in a broader separation of powers discussion about the distinctions between the federal and state separation of powers doctrines, using California as an example.
In a conversation moderated by Braden Boucek, David. A. Carrillo, Luke A. Wake, and John C. Yoo explored those distinctions, examined how they affect the latitude and options state and federal executives have, and debated the extent to which federal separation of powers doctrines can or should be applied to the states through judicial interpretation.
Featuring:
- David A. Carrillo, Lecturer in Residence and Executive Director, California Constitution Center, University of California, Berkeley, School of Law
- Luke A. Wake, Attorney, Pacific Legal Foundation
- John C. Yoo, Emanu…
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Apr 11, 2022
Deep Dive 216 – Title VI, College Admissions, and Public Opinion
With the Supreme Court about to hear two cases involving the use of race in admissions at Harvard and the University of North Carolina, what do Americans actually think about preferential treatment? Dr. Althea Nagai, Senior Research Fellow at the Center for Equal Opportunity (CEO), presented her analysis of recent data from the Pew Research Center on what Americans believe colleges should consider when deciding whom to admit. Her study focuses on the attitudes of some of the beneficiaries of affirmative action, based on a large sample of black and Hispanic respondents as well as Asians and whites. Joining Dr. Nagai on the panel discussion were Theodore Johnson, Director of the Fellows Program at the Brennan Center for Justice, and moderator Linda Chavez, CEO Chair.
Featuring:
- Theodore Johnson, Director, Fellows Program, Brennan Center for Justice
- Althea Nagai, Senior Research Fellow, Center for Equal Opportunity
- [Moderator] Linda Chavez, Chairman, Center for Equal Opportunity
V…
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Mar 29, 2022
Tech Roundup 15 – Rail Automation and Forced Access
Experts Ian Adams and Ike Brannon join the podcast to break down recent proposals regarding forced access to railroads. Is concentration an issue within the rail industry? If so, would forced access solve the problem? And what implications would a forced access rule have for the rail industry, and for technological innovation more generally?
Read Ike's recent paper on the topic here: https://www.cato.org/regulation/spring-2022/switching-wrong-track
Featuring:
- Ian Adams, Executive Director, International Center for Law & Economics
- Ike Brannon, President, Capital Policy Analytics
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Mar 29, 2022
Deep Dive 215 – Sundown for the SUNSET Rule?
In January 2021, the Department of Health and Human Services ("HHS") finalized its SUNSET Rule. Section 610 of the Regulatory Flexibility Act ("RFA") requires agencies to have a written plan to review their significant regulations every ten years to determine their impact on small entities (and to determine whether the regulations should be amended or rescinded based on the findings of the review). Because HHS found it was not reviewing all its significant regulations, it issued the SUNSET Rule to better incentivize review. Under the SUNSET Rule, all HHS regulations must be assessed every ten years to determine whether they are significant under the RFA and if they are, the review called for by the RFA must be performed. If the assessment or review of a regulation is not conducted every ten years, the regulation would expire.
Critics of the rule argue that committing HHS to reassessing the economic impacts of many of the department's existing regulations is a large undertaking and it…
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Mar 18, 2022
Deep Dive 214 – Emergency Management Statutes: Lessons from COVID-19
In March 2020, the COVID-19 pandemic was sweeping the country and governors throughout the nation were issuing declarations of emergency. What followed was a perhaps unprecedented period of emergency governance, wherein governors in many states asserted power to manage not only their state's economy, but significant portions of civil society, in response to the pandemic. The state of emergency continues in some states, with renewed restrictions still possible.
The Regulatory Transparency Project hosted a virtual discussion on Wednesday, March 16 featuring an expert panel debating whether states should be updating and reforming their emergency management statutes in light of our collective experience with emergency governance over the past 24 months. Braden Boucek of the Southeastern Legal Foundation moderated the discussion between David A. Carrillo of the U.C. Berkeley California Constitution Center and Luke A. Wake of the Pacific Legal Foundation.
Featuring:
- David Carrillo, Lectu…
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Mar 17, 2022
Deep Dive 213 – After California and Virginia, What’s Next? Examining the State of State Data Privacy Legislation
Data privacy and data security are tech policy concerns that resonate with many voters and policymakers. In the absence of federal data privacy legislation, some states have passed, and others are considering, their own legislation to deal with data privacy questions related to specific technologies including biometrics, among many others. While California had the first general data privacy law at a state level, Virginia and Colorado passed different laws last year. Now states ranging from Connecticut to Utah are considering data privacy laws often modeled after these two examples. What do these data privacy laws mean for consumers and companies, both large and small? What might the landscape of state data privacy laws look like after the 2022 legislative session?
Featuring:
- Daniel Castro, Vice President and Director, Center for Data Innovation, Information Technology and Innovation Foundation
- Keir Lamont, Senior Counsel, Future of Privacy Forum
- [Moderator] Jennifer Huddleston,…
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Mar 11, 2022
Deep Dive 212 – Litigation Update: Roberts v. Bassett: NY Racial Preferences in Allocating COVID Treatments
Faced with a limited supply of recently-approved COVID-19 treatments, both the State and City of New York have issued directives instructing physicians and providers on how to prioritize treatment. One of the factors to be considered is race. In Roberts v. Bassett, two lifelong New Yorkers challenge the government's race-based allocation of potentially lifesaving COVID-19 treatments. Wen Fa, an attorney who represents the plaintiffs, joined us to discuss the latest in the case.
Featuring:
- Wen Fa, Senior Attorney, Pacific Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Mar 7, 2022
Deep Dive 211 – Section 230, Common Law, and Free Speech
Social media has become a prominent way for lawmakers, public agencies, experts, and governments to communicate with the public. Meanwhile, a once-obscure provision in federal communications law — Section 230 of the Communications Decency Act — has become a political football because it provides liability protections to internet-based companies like Facebook and Twitter. Our guests, Kristian Stout, Brent Skorup, and moderator Adam Thierer, are legal experts who have written about the history of media law and Section 230. They joined us for a moderated discussion featuring audience Q&A, as Stout and Skorup debated how lawmakers and courts should approach future Section 230 issues, political speech, and free speech online.
Featuring:
- Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
- Kristian Stout, Director of Innovation Policy, International Center for Law & Economics
- [Moderator] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason…
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Mar 2, 2022
Explainer 34 – Institute for Justice's "Barriers to Business" Report
"To better understand the challenges small businesses face and to offer recommendations," Institute for Justice's Andrew Meleta and Alex Montgomery "analyzed the codes of 20 large to mid-sized cities, interviewed entrepreneurs from across the country, and mapped out the real-world process of starting five common business types from the entrepreneur's perspective." They then compiled their findings in IJ's "Barriers to Business" report, which is available here: https://ij.org/report/barriers-to-business/.
In this episode, Meleta and Montgomery join the Goldwater Institute's Jon Riches to discuss the major takeaways from their report and how cities can better attract and support entrepreneurs.
Featuring:
- Andrew Meleta, Activism Associate, Institute for Justice
- Alex Montgomery, City Policy Associate, Institute for Justice
- [Moderator] Jon Riches, Director of National Litigation, Goldwater Institute
Visit our website – www.RegProject.org – to learn more, view all of our content…
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Feb 25, 2022
Deep Dive 210 – Cryptocurrencies: Money, Trust and Regulation
Dr. Oonagh McDonald’s latest book, “Cryptocurrencies: Money, Trust and Regulation,” discusses the nature of money, the introduction of the first cryptocurrency – Bitcoin – and the maturation of the space, how regulators have approached the burgeoning industry, and whether cryptocurrencies might ultimately be viable alternatives to “money” as we know it today. The Regulatory Transparency Project was pleased to welcome Dr. McDonald and Coin Center Executive Director Jerry Brito to discuss these important issues.
Featuring:
- Oonagh McDonald, Senior Adviser, Crito Capital
- [Moderator] Jerry Brito, Executive Director, Coin Center
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Feb 24, 2022
Tech Roundup 14 – Telematics in Cars and the Regulation of Auto Insurance
Ian Adams joined the podcast to break down the policy aspects of a recent Twitter spat between Elon Musk and California Insurance Commissioner Ricardo Lara. What are telematics, and how are they used by the auto insurance industry? What is California's Proposition 103? What lessons can this episode teach about policy regarding emerging technologies more generally?
Read Ian's recent piece on the topic here: https://www.insurancejournal.com/blogs/law-and-economics/2022/02/17/654839.htm
Featuring:
- Ian Adams, Executive Director, International Center for Law & Economics
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Feb 18, 2022
Deep Dive 209 – Who Should Decide Whether Drugs Are Available Over-The-Counter or by Prescription?
In October 2020, Michael Cannon and Jeffrey Singer proposed ending the U.S. Food and Drug Administration's authority to decide which drugs are available only by prescription. Their solution: leaving the decision to the drugs' manufacturers. This Regulatory Transparency Project program featured Michael Cannon, former FDA official Joshua Sharfstein, and moderator Dan Troy discussing prescription drugs, nonprescription drugs, and who decides.
Featuring:
- Michael Cannon, Director of Health Policy Studies, Cato Institute
- Joshua Sharfstein, Vice Dean for Public Health Practice and Community Engagement, Bloomberg School of Public Health, Johns Hopkins University
- [Moderator] Dan Troy, Chief Business Officer, Chief Administrative Officer, and General Counsel, Valo
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Feb 14, 2022
Explainer 33 – Litigation Update: Shaw v. Metro. Gov't
On January 26, the Tennessee State Supreme Court heard oral arguments in Shaw et. al. v. Metropolitan Government of Nashville and Davidson County, a case in which the plaintiffs are challenging a zoning provision that prevented them operating businesses out of their homes. The city argues that the provision is "rationally related to the legitimate goal of protecting the residential nature of neighborhoods," while the plaintiffs contend the provision violates their state constitutional rights to substantive due process and equal protection.
Paul Avelar and Braden Boucek, who are representing the plaintiffs in the case, joined the podcast to break down the case from their clients' point of view.
Featuring:
- Paul Avelar, Managing Attorney, Arizona Office, Institute for Justice
- [Moderator] Braden Boucek, Director of Litigation, Southeastern Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Feb 11, 2022
Deep Dive 208 – A Debate on COVID-19 Vaccine Mandates
On February 2, 2022, Lawrence Gostin, David Hyman, and Jenin Younes joined the Federalist Society's Georgetown Law Student Chapter to debate COVID-19 vaccine mandates.
Featuring:
- Lawrence Gostin, University Professor, Founding Linda D. & Timothy J. O'Neill Professor of Global Health Law, Faculty Director of O'Neill Institute for National & Global Health Law, Georgetown University
- David Hyman, Scott K. Ginsburg Professor of Health Law & Policy, Georgetown University
- Jenin Younes, Litigation Counsel, New Civil Liberties Alliance
- [Moderator] Courtney Stone Mirski, Editor in Chief, Food and Drug Law Journal
- [Introduction] Elizabeth Henry, President, Federalist Society's Georgetown Law Student Chapter
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Feb 9, 2022
Deep Dive 207 – Litigation Update: Investigating Title VI and Title IX Complaints
Title IX of the Education Amendments of 1972 supplemented Title VI of the Civil Rights Act of 1964 to include, in addition to barring discrimination on the ground of race, color, or national origin, sex as a protected class in federally funded education programs or activities. The purpose of enacting Title IX was to ensure that everyone, regardless of sex, would enjoy a discrimination-free educational experience.
In the years since their enactment, observers have accused colleges and universities of violating Titles VI and IX in various ways. Many Title IX concerns have involved single-sex, female-only programs, scholarships, awards, fellowships, camps, clubs, etc. Others have involved single-sex, male-only programs. And recently, programs or scholarships for BIPOC-only or people of color have invoked Title VI concerns. One such observer of these potential civil rights violations is professor emeritus of economics at the University of Michigan, Mark Perry.
Over the last three years,…
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Feb 2, 2022
Tech Roundup 13 – Autonomous Vehicles: Where Are We Now?
Experts Marc Scribner and Adam Thierer join us to provide an update on autonomous vehicle (AV) policy. Why has Congress been unable to pass significant AV legislation? How have the Department of Transportation and state governments filled that void? What are the best and worst examples of how governments should approach AVs?
Related Reading:
- "Congress' failure to enact an automated vehicle regulatory framework is an opportunity for states"
(https://reason.org/commentary/congress-failure-to-enact-an-automated-vehicle-regulatory-framework-is-an-opportunity-for-states/)
- "Challenges and Opportunities for Federal Automated Vehicle Policy"
(https://reason.org/policy-brief/challenges-and-opportunities-for-federal-automated-vehicle-policy/)
- "10 Best Practices For State Automated Vehicle Policy"
(https://reason.org/policy-brief/10-best-practices-for-state-automated-vehicle-policy/)
- "Elon Musk and the Coming Federal Showdown Over Driverless Vehicles"
(https://www.discoursemagazine.com/e…
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Jan 20, 2022
Explainer 32 – The Vaccine Mandate Cases and the Future of Administrative Law
On January 13, the Supreme Court stayed the Occupational Safety and Health Administration's (OSHA) COVID-19 vaccine-or-test mandate for large businesses, but allowed a vaccine mandate for staff at facilities receiving Medicare and Medicaid funding to go into effect. An expert panel joined us to break down these rulings' implications for administrative law, with a particular focus on what they might mean for the future of the non-delegation and major questions doctrines.
Featuring:
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
- Ilan Wurman, Associate Professor of Law, Sandra Day O'Connor College of Law, Arizona State University
- [Moderator] Luke A. Wake, Attorney, Pacific Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Jan 12, 2022
Deep Dive 206 – Intellectual Property in a Pandemic: The Proposed COVID-19 WTO Waiver
In October 2020, India and South Africa filed a request at the World Trade Organization (WTO) to create an exemption from an international treaty known as TRIPS (Trade-Related aspects of Intellectual Property Rights) for technologies, drugs, and vaccines used to respond to the COVID-19 pandemic. If the WTO adopts the waiver, countries could refuse to issue and protect IP rights for those technologies.
Some argue that the waiver is a necessary measure that would give a boost to the global fight against COVID-19, but others contend it would do little to help defeat the current pandemic and could hinder future innovation. An expert panel joined us to discuss the proposed waiver and weigh the arguments on each side of the debate.
In October, members of RTP's Intellectual Property Working Group published a white paper on the same topic, which you can read here:
https://regproject.org/paper/covid-vaccine-ip-waiver-a-pathway-to-fewer-not-more-vaccines/
Featuring:
- Andrei Iancu, Partner, I…
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Dec 22, 2021
Deep Dive 205 – An Update on the Clean Power Plan Litigation
The Supreme Court is now hearing the most closely watched environmental case in decades, which may decide the future of greenhouse gas regulation under the Clean Air Act. This case has already been the subject of an unprecedented Supreme Court stay that short-circuited the Obama administration's climate agenda and not one, but two, 7+ hour arguments before the D.C. Circuit. Jonathan Brightbill and Kevin Poloncarz, who argued the case before the D.C. Circuit, joined us to discuss what it means for the future of climate regulation and administrative law.
Under the Clean Air Act, the Environmental Protection Agency regulates greenhouse gas emissions from various sources including new cars and new industrial sources. But a large proportion of the country's greenhouse gas emissions come from existing sources, such as the nation's coal and natural gas power plants, which provide over half of American electricity.
In 2015, the Obama administration issued a regulation for existing fossil fue…
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Dec 10, 2021
Explainer 31 – The Regulation of E-Cigarettes and Vapes
Health policy expert Jeff Stier joins the podcast to discuss all things concerning the regulation of e-cigarettes and vapes: How did the FDA get the authority to regulate tobacco in the first place? What is synthetic nicotine, and what might its developement demonstrate about the interplay between federal agencies and their statutory authority? What are the most recent FDA actions in this area, and what is likely to come next?
In June Jeff narrated an Explainer video on the same topic, which you can view here:
https://www.youtube.com/watch?v=B2_brl2u9g0
Featuring:
- Jeff Stier, Senior Fellow, Consumer Choice Center
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Nov 18, 2021
Deep Dive 204 – The FTC in the Current Administration: Buckle Your Seatbelts
The last few months have seen significant changes at the Federal Trade Commission. The new FTC has set an ambitious agenda that revives the agency, propelling it in directions we haven't previously seen. The FTC is poised to engage in wide-ranging antitrust and consumer protection investigations, issue industry-wide rules, and blend antitrust and consumer missions for a better outcome.
Featuring:
- Adam Cella, Attorney Advisor, Office of Hon. Christine Wilson, Federal Trade Commission
- Debbie Feinstein, Partner and Chair, Global Antitrust, Arnold & Porter
- Jessica Rich, Of Counsel, Kelley Drye; former Director, Bureau of Consumer Protection, Federal Trade Commission
- [Moderator] Svetlana Gans, Former Chief of Staff, Federal Trade Commission
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Nov 4, 2021
Deep Dive 203 – FTC’s Revolution Through Rulemaking
The FTC is undertaking an ambitious and historic effort to craft de novo competition and privacy rules that will impact the entire U.S. economy. While some have applauded FTC's efforts, others have questioned the FTC's statutory authority to craft such rules. This webinar featured a panel of experts discussing the agency's statutory authority, processes and procedures, and specific rules that may be in play.
Featuring:
- Corbin Barthold, Director of Appellate Litigation and Internet Policy Counsel, TechFreedom
- William Blumenthal, Partner, Sidley Austin LLP
- Andrew Stivers, Associate Director, NERA Economic Consulting
- [Moderator] Svetlana Gans, Vice President & Associate General Counsel, NCTA
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Nov 1, 2021
Deep Dive 202 – HUD and the Disparate Impact Rule
On June 25, 2021, President Biden's newly appointed Housing Secretary Marcia Fudge proposed to rescind a Secretary Carson-era disparate impact rule designed to implement the Fair Housing Act. In its place, HUD would reinstate the 2013 Discriminatory Effect Standard because the 2013 rule "better states Fair Housing Act jurisprudence and is more consistent with the Fair Housing Act's remedial purposes." By the time notice and comment ended on August 24, 2021, over ten thousand public comments had been submitted.
Critics of Secretary Fudge's proposed rule, including Ranking Member Senator Pat Toomey, argue that the change not only flouts the Supreme Court's decision in Texas Department of Housing and Community Affairs v. Inclusive Communities but also ultimately hurt consumers. Proponents argue that the change will move the housing market towards greater equity. Our panel of experts with a diversity of views discussed the pros and cons on October 11, 2021.
Featuring:
- Paul Compton, Fou…
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Oct 29, 2021
Deep Dive 201 – Fixing Food: An FDA Insider Unravels the Myths and the Solutions
In this episode, Professor David Hyman interviews Dr. Richard Williams about Dr. Williams' new book, "Fixing Food: An FDA Insider Unravels the Myths and Solutions."
A twenty-seven-year veteran of the FDA's Center for Food Safety and Nutrition, Dr. Williams questions the accuracy of more than thirty years of food labeling, along with consumer education on diet/disease relationships and failed attempts to get consumers to track intakes.
Featuring:
- Dr. Richard A. Williams, Former Associate Director for Social Sciences, FDA; Author, "Fixing Food: An FDA Insider Unravels the Myths and Solutions"
- [Moderator] David Hyman, Scott K. Ginsburg Professor of Health Law & Policy, Georgetown University Law Center
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Oct 13, 2021
Deep Dive 200 – Corporate Social Responsibility, Investment Strategy, and Liability Risks
Environmental, Social and Corporate Governance (ESG) investing is growing in popularity, especially after major investment firm BlackRock signaled support for what it called "ESG Integration," or the practice of incorporating material ESG information into investment and divestment decisions. However, since this strategy is relatively young, the short–and long–term merits and potential harm to investors are both unclear.
A distinguished panel joins us to discuss a new paper, titled "Corporate Collusion" and written by former U.S. Ambassador and White House Counsel C. Boyden Gray, and to offer their differing views on the legal issues involved, including ESG, ERISA requirements, fiduciary duty, and more.
Featuring:
- David J. Berger, Partner, Wilson Sonsini
- Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates
- Hon. Hester Peirce, Commissioner, U.S. Securities and Exchange Commission
- Hon. Leo E. Strine, Jr., Of Counsel, Wachtell Lipton; former Chief Justice, Delaware…
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Oct 12, 2021
Explainer 30 – An Update on Telemedicine Laws and Regulations
During the COVID-19 pandemic, federal and state governments relaxed rules that limit telemedicine—technology that enables people to access healthcare from their phones and/or computers—to allow more patients to receive care from the convenience and comfort of their homes. Now, as the pandemic wanes, there are significant debates over whether these changes should be made permanent. In this episode, the Goldwater Institute's Christina Sandefur and the Institute for Justice's Josh Windham explore the rationales behind telemedicine regulations and examine how reforms and lawsuits might transform how patients receive care.
Featuring:
- Josh Windham, Attorney, Institute for Justice
- [Moderator] Christina Sandefur, Executive Vice President, Goldwater Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Sep 28, 2021
Deep Dive 199 – Pass or Fail? Grading the NLRB, EEOC, and DoL
Collectively the Department of Labor, Equal Employment Opportunity Commission, and the National Labor Relations Board play a pivotal role in almost every dimension of employment in the nation. This inaugural panel discusses recent developments in the regulatory regimes of each and grades their performance over the four years of the Trump Administration. Greg Jacob moderates the discussion and presses our speakers about the fairness and accuracy of their grades.
Featuring:
- David Fortney, Co-Founder, Fortney & Scott LLC, and former Chief Legal Officer, U.S. Department of Labor
- Leon Sequeira, Former Assistant Secretary of Labor for Policy, U.S. Department of Labor
- Glenn Taubman, Staff Attorney, National Right To Work Legal Defense Foundation
- [Moderator] Gregory Jacob, Partner, O'Melveny & Myers LLP, and former Counsel to Vice President Pence and Deputy Assistant to the President
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with…
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Sep 20, 2021
Deep Dive 198 – Eyes to The Sky: Privacy, Property, Innovation, and Commerce in The Age Of The Drone
Drones are rapidly becoming part of our everyday lives, and society will soon need to grapple with profound issues related to property, privacy, and nuisance. While drones are aircraft, the laws governing aircraft may soon be challenged as drones operate closer to the ground and in airspace never before occupied by manmade flying objects. The unique flying capability of drones is what makes them so valuable and is what will challenge settled laws, individual rights, and liberties.
The editor and two of the co-authors of "Eyes to the Sky: Privacy and Commerce in the Age of the Drone" joined us for a panel discussion of these legal and policy issues and more.
Featuring:
- Matthew Feeney, Director, Project on Emerging Technologies, Cato Institute
- Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
- Gregory S. Walden, Partner, Dentons
- [Moderator] Gregory McNeal, Professor of Law and Public Policy, Pepperdine University and Co-Founder, AirMap
Visit our web…
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Sep 10, 2021
Deep Dive 197 – Competition at a Crossroads: Will the Executive Order on Competition Advance Competition, or Restrict It?
Protecting and preserving competition are the key objectives of U.S. antitrust laws, which are all phrased as prohibitions: on agreements "in restraint of trade," of mergers and acquisitions where the effect "may be substantially to lessen competition, or to tend to create a monopoly," and on "unfair methods of competition." In a July 2021 Executive Order, the Biden Administration directed agencies to pursue 72 specific initiatives to tackle what are seen as our most pressing competition problems. Will these initiatives enhance the role of competition, or are they instead initiatives that would replace the outcomes of competitive markets with regulatory requirements? Both views have strong champions and well-articulated views. A distinguished panel joined us to lay out the arguments and implications of these important policy choices.
Featuring:
- Neil Averitt, Opinion Columnist, FTC:Watch
- Howard Beales, Professor Emeritus of Strategic Management and Public Policy, School of Business…
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Sep 8, 2021
Deep Dive 196 – Brace Yourself: Discussing The ATF’s Rulemaking On Forearm Stabilizing Braces
The Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) in 2012 determined that forearm stabilizing braces for firearms serve a legitimate function and do not automatically subject a firearm to the strict requirements of the National Firearms Act of 1934. In December 2020, however, the BATFE proposed new regulations that could subject almost all firearms with forearm stabilizing braces to the NFA. On August 31, 2021, an expert panel joined us for a discussion on the proposed rule and how it fits into wider debates over agency rulemaking on controversial issues.
Featuring:
- Michael D. Faucette, Associate, Wiley Rein
- Paul Helmke, Professor of Practice and Director, Civic Leaders Center, Paul H. O'Neill School of Public and Environmental Affairs, Indiana University
- [Moderator] John Shu, Attorney and Legal Commentator
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Sep 2, 2021
Deep Dive 195 – President Biden’s Executive Order on Foreign-Controlled Apps
In June, President Biden revoked a Trump-era executive order that sought to ban TikTok and WeChat, and replaced it with a new executive order directing the government to review the security threats posed by foreign-controlled software applications. "The Federal Government should evaluate these threats through rigorous, evidence-based analysis," Biden's order dictated, "and should address any unacceptable or undue risks consistent with overall national security, foreign policy, and economic objectives, including the preservation and demonstration of America's core values and fundamental freedoms."
An expert panel joined us to break down the order and its implications for the apps it targets as well as for future relations between the United States and its foreign adversaries, such as China.
Featuring:
- Jennifer Hay, Senior Director for National Security Programs, DataRobot
- Jamil N. Jaffer, Founder & Executive Director, National Security Institute and Director, National Security Law…
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Aug 25, 2021
Deep Dive 194 – Examining the CDC's Eviction Moratorium
In September 2020, the Centers for Disease Control and Prevention (CDC) issued its first nationwide eviction moratorium. Since then, the CDC renewed the moratorium several times and most recently issued a new eviction moratorium that is substantially the same as prior versions, but its applicability depends on COVID-positivity rates in each jurisdiction. Under the CDC eviction moratorium orders, state courts are prohibited from proceeding with eviction proceedings if the renter asserts that he cannot pay his rent as a result of the pandemic. The private property owners are required to allow the non-paying renter to live rent-free, until the renter can pay at a later, unspecified date.
Following the CDC's first eviction moratorium, lawsuits were filed across the country. Many of them arguing that the federal government lacked the constitutional and statutory authority to stop state court eviction proceedings. As federal courts declared the CDC eviction moratorium unconstitutional and i…
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Aug 18, 2021
Deep Dive 193 – Arthrex: The End of Patent Exceptionalism in the Administrative State?
The decision in United States v. Arthrex was extremely fractured, with a mix of majority, concurring, and dissenting opinions that cut across traditional jurisprudential divisions on the Supreme Court. Although the split majority held that the appointment of the Administrative Patent Judges at the Patent Trial & Appeal Board (PTAB) violates the Appointments Clause, the Court ultimately remedied this constitutional violation by revising the America Invents Act to give the Director of the U.S. Patent & Trademark Office (USPTO) more direct review and control over the decisions reached by the PTAB concerning the validity of patents. Although this makes the PTAB decision-making process at the USPTO more like the adjudicatory processes at other agencies, in which agency heads have direct oversight and control over their administrative law judges, it raises fundamental questions about the PTAB process created by Congress, which was supposed to consist of solely legal analyses of the statutory…
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Aug 10, 2021
Deep Dive 192 – Gender Based Board Quotas, the Fourteenth Amendment, and Meland v. Weber
On June 21, 2021, the Court of Appeals for the Ninth Circuit ruled a shareholder-plaintiff had standing to sue California's Secretary of State. Creighton Meland, a shareholder at OSI Systems, Inc., sued alleging that Senate Bill 826, which was signed into law in 2018, violates the Fourteenth Amendment because it requires corporations to elect a sliding scale quota of women to corporate board member seats. The District Court ruled Meland had no standing because SB 826 governed corporations, not shareholders, and at the time of Meland's suit OSI was in compliance so any controversy was moot.
The Ninth Circuit disagreed, allowing Meland's suit to go forward by finding that the practical effect of SB 826 was to govern shareholders and direct them to vote on the basis of gender to avoid the imposition of fines or penalties for noncompliance. The court further held that Meland's suit alleged a direct harm and did not rely on prudential standing since he alleged personal harm rather than inj…
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Aug 5, 2021
Explainer 29 – The EPA's Methane Emissions Rule
In June, President Biden signed into law a bill that repealed changes to Environmental Protection Agency methane emissions regulations made by the Trump administration. In this episode, Professor Jonathan Adler joins the podcast to provide context to this development and to discuss the underlying legal and environmental issues at play.
Featuring:
- Jonathan H. Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Aug 3, 2021
Deep Dive 191 – Talks with Authors: A Dubious Expediency
"A Dubious Expediency: How Race Preferences Damage Higher Education" is a collection of eight essays written by experts in the field examining and analyzing the impact of racial diversity preferences and identity politics in American colleges and universities. The book's title comes from a 1976 California Supreme Court opinion in Bakke v. UC Regents authored by Justice Stanley Mosk, who wrote: "To uphold the [argument for race-preferential admissions] would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality." In the book, the authors take up the question of race-based preferences in higher education, arguing that mounting empirical evidence shows race-based solutions cause long term harm both to intended beneficiaries and to society as a…
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Jul 19, 2021
Deep Dive 190 – The Implications of the Latest Congressional Review Act Disapprovals
The Congressional Review Act (CRA) was used in 2017 to overturn 15 rules issued near the end of the Obama administration. The shift in political control in the White House and Congress this year set the stage for a possible repeat with respect to Trump administration rules. The CRA's period for expedited congressional procedures (free of the Senate filibuster) has now expired for late Trump era regulations, and Congress overturned only three such rules. On June 24, Congress finished action to repeal the EEOC conciliation rule and the OCC (Comptroller) true lender rule, and it took final action to repeal the EPA methane rule the following day. President Biden has since signed all three resolutions, making them law.
This latest cycle of CRA actions merit general exploration as well as consideration of the specific rules at issue. What process did Congress use to disapprove the three rules? Why did it use the CRA relatively sparingly this year, and what will the impact be of the three di…
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Jul 15, 2021
Deep Dive 189 – A Dawning Era for Vertical Mergers? The New Vertical Merger Guidelines, Illumina/Grail, and More
The antitrust agencies' approach to vertical mergers has been the subject of significant debate — with potential changes still on the horizon. Last summer, the Department of Justice and the Federal Trade Commission issued long-awaited Vertical Merger Guidelines, the first update since 1984. The FTC's challenge to the Illumina/Grail merger — which sits at the intersection of healthcare and developing technology issues — is currently scheduled to begin an administrative trial next month. This would mark the first vertical merger litigation under the new Vertical Merger Guidelines, and one of the first since the DOJ's loss in AT&T/Time Warner. Our panel of experts discuss the recent developments in the vertical merger space, the theories at issue in the Illumina/Grail case, and implications for enforcement activity over the coming months and years.
Featuring:
- Steve Cernak, Partner, Bona Law PC
- Michael Kades, Director, Markets and Competition Policy, Equitable Growth
- Bruce Kob…
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Jul 14, 2021
Deep Dive 188 – Immigration Policymaking in the Biden Administration
Motivated in part by Congress's failure to modernize immigration policy in the United States, Presidents in recent years have turned to administrative law and the regulatory process to make major immigration policy. The Obama Administration's DACA and DAPA immigration policies come immediately to mind. So does the Trump Administration's attempted rescission of DACA, among other regulatory or executive branch actions such as the travel ban, regulation of "sanctuary" cities, and major adjudicative and rulemaking policy changes to asylum and related relief.
Now that regulation is the primary means for immigration lawmaking, scholars, judges, and government officials have begun debating the proper regulatory processes for promulgating major immigration policy. In her book Beyond Deportation, for example, Professor Shoba Sivaprasad Wadhia has examined the value of rulemaking over agency guidance for major immigration policy and related relief. In a recent coauthored Duke Law Journal articl…
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Jul 8, 2021
Deep Dive Episode 187 – Courthouse Steps Decision: Cedar Point Nursery v. Hassid
The Supreme Court issued its decision in Cedar Point Nursery v. Hassid on June 23, 2021, holding 6-3 that a California regulation allowing California union organizers entry onto the private property of California growers constituted an uncompensated per se physical taking in violation of the Fifth and Fourteenth Amendments. The Ninth Circuit’s decision upholding the regulation was reversed and the case was remanded.
In this episode, attorney Wen Fa analyzes the decision and its implications.
Featuring:
Wen Fa, Attorney, Pacific Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Jul 7, 2021
Deep Dive 186 – Teaching About Race in the Curriculum
This episode features a panel discussion on Critical Race Theory, the 1619 Project and the current debates over how best to teach American history. Linda Chavez, Chairman of the Center for Equal Opportunity moderates the program and is joined by Peter Wood, President of the National Association of Scholars and author of 1620: A Critical Response to the 1619 Project, and John Agresto, former President of St. John’s College in Santa Fe.
Featuring:
- John Agresto, Former President, St. John's College
- Peter Wood, President, National Association of Scholars
- [Moderator] Linda Chavez, Chairman, Center for Equal Opportunity
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Jul 6, 2021
Explainer 28 – Rep. Harshbarger on the Freedom to Work Act
In May 2021, Rep. Diana Harshbarger (R-Tenneessee) introduced the "Freedom to Work Act," a bill that would utilize the federal government to reduce occupational licensing requirements. In this episode, the Congresswoman joins Shoshana Weissmann to discuss the bill and the most prevalent arguments for and against its passage.
Featuring:
- Rep. Diana Harshbarger, United States Representative, Tennessee
- [Moderator] Shoshana Weissmann, Senior Manager of Digital Media and Fellow, R Street Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Jun 29, 2021
Deep Dive 185 – SEC v. Ripple Labs: Cryptocurrency and “Regulation by Enforcement”
In recent years, a number of regulatory agencies have increasingly utilized enforcement actions rather than formal rulemaking to achieve desired policy outcomes. Critics argue that this "regulation by enforcement" raises legal concerns involving fair notice, the rule of law, and the Administrative Procedure Act. One prominent example of this phenomenon is the regulation of the cryptocurrency industry, where explosive innovation and growth have left many players appealing for clear rules of the road, rather than unpredictable enforcement actions carried out by a variety of federal agencies, including the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC), and the Financial Crimes Enforcement Network (FinCEN).
While the SEC has declared that Bitcoin and Ether, the two largest cryptocurrencies, are not securities, the agency has increasingly brought lawsuits arguing that other coins must be registered as securities, relying on New Deal-era statutes…
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Jun 28, 2021
Deep Dive 184 – Federalism or a Federal Standard? Fuel Economy and Greenhouse Gas Emissions Standards
Federal and state government authority to mandate automobile manufacturers and consumers switch to electric cars is one of the most contentious legal and policy debates of the last two decades.
The Biden Administration has proposed to rescind two actions of the Trump Administration — EPA's withdrawal of a Clean Air Act waiver of preemption, and a Department of Transportation preemption regulation — that together attempt to establish one preemptive, national standard for automobile fuel economy and greenhouse gas emissions by the NHTSA and EPA and, as a consequence, prohibit California from adopting or enforcing motor vehicle greenhouse gas emissions or zero-emitting vehicle requirements for motor vehicles under state law.
In this live podcast, a panel of lawyers involved in the litigation discuss the legal and policy issues presented by these proposals.
Featuring:
- Jonathan Brightbill, Partner, Winston & Strawn LLP
- Sean H. Donahue, Partner, Donahue, Goldberg & Weaver LLP
- Be…
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Jun 25, 2021
Deep Dive 183 – The Path Forward on Agency Guidance
Over the past decade or so, increasing attention has been paid to agency guidance, the role it serves, and whether it has begun to supplant legally binding regulation as a governing tool. To place more parameters around its use, President Trump issued Executive Order 13891. President Biden rescinded that order upon taking office, and agencies are in the process of unwinding actions taken to implement the order.
In this episode, experts conduct a lively discussion of agency guidance – what it is, how and why it is issued, pros and cons of current guidance practices, thoughts on reforms in E.O. 13891, and the potential future of guidance reform.
Featuring:
- Bridget Dooling, Research Professor, George Washington University Regulatory Studies Center
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
- Paul Ray, Senior Advisor, Patomak Global Partners
- [Moderator] Daniel Flores, Senior Counsel, Committee on Oversight and Reform,…
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Jun 24, 2021
Deep Dive 182 – Cybersecurity Threats and the Regulatory Response
The Biden administration had barely named a cabinet, let alone staffed the government, when it began taking cybersecurity hits from all directions. The Russian government was revealed to have carried out a sophisticated supply chain attack through SolarWinds. Then Chinese government hackers launched attacks through Microsoft Exchange, often using extremely irresponsible and promiscuous tactics. Then Russian ransomware gangs threatened a fuel pipeline to the East Coast and beef supplies nationwide.
And that's just the first six months. What has been the fallout from these events and how is the administration responding? The calls for regulation of critical infrastructure, of cryptocurrency, and for aggressive retaliation have never been louder. Which will have a long-term impact?
In this live podcast, Stewart Baker and Tatyana Bolton trade insights on this pressing topic.
Featuring:
- Stewart Baker, Partner, Steptoe & Johnson LLP
- Tatyana Bolton, Director, Cybersecurity and Emerging…
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Jun 22, 2021
Deep Dive 181 – State of Emergency? Kentucky’s Legislature vs. Governor
On June 10, the Kentucky Supreme Court heard a pair of cases to consider whether and to what extent the Commonwealth's legislature may set parameters on the Governor's exercise of emergency powers.
In March 2020, Kentucky Governor Andy Beshear declared a state of emergency related to the COVID-19 pandemic. Since then, he and other executive branch officials have issued executive orders, regulations, and other directives aimed at combatting the spread of the virus. On February 2 of this year, Kentucky's General Assembly enacted a series of bills — over Governor Beshear's vetoes — that amended the Commonwealth's emergency powers laws. Under those laws, executive emergency orders that restrict private entities like businesses and churches lapse automatically after 30 days unless extended with the agreement of the legislature. Without legislative action, the Governor's existing orders lapsed on March 4, 2021. The Governor maintains, however, that the new laws invade the executive's au…
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Jun 10, 2021
Deep Dive 180 – Book Review: Administrative Law Theory and Fundamentals: An Integrated Approach
With his new casebook, "Administrative Law Theory and Fundamentals: An Integrated Approach," Professor Ilan Wurman seeks to provide fresh thinking to the field of administrative law. In the casebook, Professor Wurman proposes a theory of administrative power that he feels explains constitutional text and structure, as well as historical and modern practice, more completely than competing accounts. He argues that there are "exclusive" powers that only Congress, the President, and the courts can respectively exercise, but also "nonexclusive" powers that can be exercised by more than one branch. With this theory of "nonexclusive powers" Professor Wurman seeks to help students and scholars of administrative law critically analyze administrative law concepts such as delegation, quasi-powers, judicial deference, agency adjudications, and the separation of powers more broadly.
In this episode, Professor Wurman and Professor Richard Epstein discuss the new casebook and its theory of administr…
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Jun 8, 2021
Explainer 27 – Occupational Regulations in the Beauty Industry
In this episode, Anastasia P. Boden interviews Daniel Greenberg about his new article, "Regulating Glamour: A Quantitative Analysis of the Health and Safety Training of Appearance Professionals." (https://repository.law.uic.edu/lawreview/vol54/iss1/2/)
Featuring:
- Daniel Greenberg, President, Advance Arkansas Institute
- [Moderator] Anastasia P. Boden, Attorney, Economic Liberty Project, Pacific Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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May 18, 2021
Explainer 26 – Land Use Restrictions and Legislative Reform
In a conversation moderated by Kimberly Hermann, Braden Boucek and Emily Hamilton discuss several proposed legislative reforms to land use restrictions.
Featuring:
- Braden Boucek, Director of Litigation, Southeastern Legal Foundation
- Emily Hamilton, Senior Research Fellow, Mercatus Center, George Mason University
- [Moderator] Kimberly Hermann, General Counsel, Southeastern Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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May 17, 2021
Deep Dive 179 – Artificial Intelligence and Bias
It is hard to find a discussion of artificial intelligence these days that does not include concerns about Artificial Intelligence (AI) systems' potential bias against racial minorities and other identity groups. Facial recognition, lending, and bail determinations are just a few of the domains in which this issue arises. Laws are being proposed and even enacted to address these concerns. But is this problem properly understood? If it's real, do we need new laws beyond those anti-discrimination laws that already govern human decision makers, hiring exams, and the like?
Unlike some humans, AI models don't have malevolent biases or an intention to discriminate. Are they superior to human decision-making in that sense? Nonetheless, it is well established that AI systems can have a disparate impact on various identity groups. Because AI learns by detecting correlations and other patterns in a real world dataset, are disparate impacts inevitable, short of requiring AI systems to produce pr…
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May 11, 2021
Deep Dive 178 – (Un)Civil War: The Future of Conservative Antitrust
On April 22, 2021, the Federalist Society's George Mason Student Chapter, the Regulatory Transparency Project, and the Global Antitrust Institute cosponsored an event featuring professors Joshua D. Wright and John Yun discussing the future of the conservative approach to antitrust law.
Featuring:
- Joshua D. Wright, Executive Director, Global Antitrust Institute, Antonin Scalia Law School at George Mason University
- John Yun, Associate Professor of Law, Antonin Scalia Law School at George Mason University
- [Introduction] Sydney Dominguez, President, The Federalist Society's George Mason Student Chapter
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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May 10, 2021
Explainer 25 – President Biden's Memo on "Modernizing Regulatory Review"
Ken Davis joined the podcast to discuss why and how President Biden's memo on Modernizing Regulatory Review could significantly alter the regulatory review process.
Featuring:
- J. Kennerly Davis, Jr., Former Senior Attorney, Hunton Andrews Kurth LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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May 6, 2021
Deep Dive 177 – Patents and Pandemics: Innovation Policy and the Patent Waiver Petition at the WTO
India and South Africa have submitted a petition to the World Trade Organization seeking a waiver of all intellectual property rights under international treaties on drugs, vaccines, or other responses to the COVID-19 pandemic. This waiver petition has provoked an intense policy debate over the role of intellectual property in healthcare innovation.
On the one hand, advocates for the waiver argue that patents have been a blockade for patient access and created higher prices, especially in developing countries. On the other hand, opponents of the waiver maintain that there is no evidence that patents are blocking drug development or distribution for the COVID-19 pandemic. The opponents also maintain that patents made possible over the past several decades the R&D investments, the creation of technical know-how, and the commercial agreements that have been the launching pad for the unprecedented development of several vaccines and other medical treatments in less than a year.
This live…
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May 4, 2021
Deep Dive 176 – Courthouse Steps Decision: AMG Capital Management v. FTC
On April 22, 2021, the Supreme Court decided AMG Capital Management, LLC v. Federal Trade Commission. Writing for the unanimous Court, Justice Breyer explained how Section 13(b) of the Federal Trade Commission Act does not authorize the FTC to seek, or a court to award, monetary relief such as restitution or disgorgement.
A panel of experts will discuss the ruling and its implications.
Featuring:
- Alden Abbott, Senior Research Fellow, Mercatus Center, George Mason University
- Corbin Barthold, Director of Appellate Litigation and Internet Policy Counsel, TechFreedom
- Maureen Ohlhausen, Partner, Baker Botts LLP
- [Moderator] Asheesh Agarwal, Deputy General Counsel, TechFreedom
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Apr 30, 2021
Explainer 24 – The Future of Title IX Implementation
Edward E. Bartlett and Linda Chavez join the podcast to discuss the future of Title IX implementation under the Biden administration, which could have significant ramifications on college campuses across the country.
Featuring:
- Edward E. Bartlett, President, SAVE
- [Moderator] Linda Chavez, Chairman, Center for Equal Opportunity
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Apr 29, 2021
Deep Dive 175 – Big Tech and Antitrust
The debate over “Big Tech” and antitrust has intensified. On one side are those who consider certain Big Tech companies monopolies that reduce competition and exploit their users’ data. On the other side are those who believe that competition in the technology market is flourishing, particularly when considering a worldwide market, and that Big Tech empowers its consumers; after all, many users never pay financially for social media use.
In addition to these economic considerations, Big Tech has raised a host of social and political concerns over speech, democracy, and power. Is Big Tech suppressing speech? Should it suppress more speech? Does it even matter if private companies “suppress speech”? Does Big Tech have too much control over our elections or none at all? What power does Big Tech wield over our lives, if any?
On April 15, 2021, the Federalist Society's Chicago Lawyers Chapter hosted a panel of antitrust experts to discuss these issues and more.
Featuring:
- Ash…
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Apr 28, 2021
Deep Dive 174 – Legal Issues for Commercial Drones: Privacy, Property Rights, and Federalism
Commercial drone technology advanced rapidly in the past decade, and companies like Walmart, Amazon, Verizon, CVS, and UPS are now actively testing drone services like home delivery, medical logistics, and infrastructure inspections. These drones fly in low-altitude airspace, however, which raises pressing questions about property rights, privacy, and federalism. Where does private property end and navigable airspace begin? What role will states and cities have, if any, in allowing or prohibiting drone operations?
In the 2018 FAA Reauthorization Act, Congress asked the GAO to study and report on the roles of federal, state, and local authorities in the regulation of drone operations. That GAO report was released in September 2020 and noted the complicated caselaw surrounding low-altitude airspace. Meanwhile, many states and cities are passing drone laws, including drone no-fly zones. Some recent state bills propose leasing airspace above public roads to drone companies. Many in the dr…
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Apr 28, 2021
Deep Dive 173 – The State of Healthcare Policy: from COVID-19 to Medicare for All
On Friday, April 16, 2021, the Federalist Society's Georgetown Student Chapter hosted a webinar featuring professors Gregg Bloche, Larry Gostin, David Hyman, and Timothy Westmoreland discussing the current state of healthcare policy in the United States.
Featuring:
- M. Gregg Bloche, Carmack Waterhouse Professor of Health Law, Policy, and Ethics, Georgetown University
- Lawrence Gostin, University Professor and Director, O'Neill Institute for National and Global Health Law, Georgetown University
- David A. Hyman, Scott K. Ginsburg Professor of Health Law & Policy, Georgetown University
- Timothy M. Westmoreland, Professor from Practice, Georgetown University
- [Moderator] Patrick Lyons, Co-President, The Federalist Society's Georgetown Student Chapter
Visit our website – https://RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Apr 21, 2021
Deep Dive 172 – Third-Party Payments in Government Litigation Settlements
In June of 2017, then-Attorney General Jeff Sessions issued a memo prohibiting the Department of Justice from directing settlement payments to non-governmental third parties that are "neither victims nor parties to the lawsuits" when the Department is engaged in litigation. The memo halted a practice that was utilized by the Bush and Obama administrations and now may make a return under the Biden administration.
Some view these third-party payments in government litigation settlements as an unconstitutional encroachment on Congress's spending power that should remain proscribed, but some see them as a legitimate measure to advance policy goals, particularly when it comes to environmental enforcement.
On April 14, the Federalist Society's Regulatory Transparency Project and Practice Groups hosted a webinar featuring experts on both sides of the issue discussing the practice and whether it will – and should – be utilized once again by the new administration.
Featuring:
- Ryan Dean…
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Apr 12, 2021
Deep Dive 171 – Courthouse Steps Oral Argument: NCAA v. Alston
On March 31, 2021, the Supreme Court heard oral arguments in NCAA v. Alston, a case addressing a Ninth Circuit decision holding that the National Collegiate Athletic Association's eligibility rules regarding compensation of student-athletes violate federal antitrust law. The Court is expected to review the decision according to circuit splits and general antitrust principles.
Joshua Wright, a former commissioner at the Federal Trade Commission, joined us to discuss oral arguments and the potential implications of the case.
Featuring:
- Joshua D. Wright, Executive Director, Global Antitrust Institute, Antonin Scalia Law School, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Apr 6, 2021
Deep Dive 170 – Engine of Inequality: The Fed and the Future of Wealth in America
In her landmark book, financial services doyenne Karen Petrou explains how, despite better intentions, Federal Reserve policies have been major drivers of economic inequality in America. Beginning with 2010 policies that widened the wealth gap, the Fed more than doubled down on its errors in 2020. Petrou, however, proposes a program of politically plausible changes in Fed policies to promote greater financial equality, economic growth, and financial stability, without requiring changes in legislation. In this live podcast, former Treasury Assistant Secretary Wayne Abernathy engages in a frank discussion with Petrou about her new book, the problems she identifies in Fed policies, and how she sees her proposals rising above partisanship to achieve the goals she sets out.
Featuring:
- Wayne A. Abernathy, Former Assistant Secretary for Financial Institutions, U.S. Department of the Treasury
- Karen Shaw Petrou, Managing Partner, Federal Financial Analytics, Inc.
Visit our website – www…
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Mar 30, 2021
Deep Dive Episode 169 – Courthouse Steps Oral Argument: Cedar Point Nursery v. Hassid
In Cedar Point Nursery v. Hassid, the Supreme Court will decide whether a California “Access Regulation” violates the Takings Clause of the Fifth Amendment. The Access Regulation allows union organizers to enter the private property of agricultural employers in the state for three hours per day, 120 days per year, for the purposes of soliciting employees to join the union.
Petitioners Cedar Point Nursery and Fowler Packing Company, Inc., are California agricultural employers subject to the Access Regulation. In 2015, union organizers came onto the property of Cedar Point Nursery, a strawberry plant harvester near the Oregon border. The same year, union organizers filed an unfair labor practices charge against Fowler Packing, a citrus and table grape grower, alleging that Fowler denied access to union organizers seeking to enter their property. Petitioners contend that the Access Regulation constitutes a per se taking by appropriating an easement for the benefit of third party union…
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Mar 18, 2021
Deep Dive Episode 168 – Deepfakes: What, If Anything, Should Policymakers Do?
“Deepfakes” are one of the latest technologies to prompt debate about online media. Using Deepfake techniques, users can make realistic-looking fake media in which people say and/or or do things they never, in fact, said or did. Although artists, documentarians, filmmakers, and many others have used Deepfakes to produce creative, and potentially life-saving, content, Deepfakes can also be used for harm, including assaults on people’s dignity and political stability. The technology, like many other innovations before it, presents risks and opportunities.
Lawmakers and academics have proposed laws to mitigate such harms. How should lawmakers approach the abusive use of Deepfakes? Can lawmakers craft legislation that limits the worst uses of Deepfakes without hampering the creation of valuable and creative Deepfake media? In this live podcast, leading experts discuss these and other questions related to this emerging technology, using Matthew Feeney's new paper on the topic, "Deepfa…
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Mar 9, 2021
Deep Dive Episode 167 – Courthouse Steps Oral Argument: United States v. Arthrex Inc.
The U.S. Supreme Court heard oral arguments in United States v. Arthrex Inc. on March 1, 2021. This case is an important one for the office of patent judges; at issue is whether, for purposes of the Appointments Clause, administrative patent judges of the U.S. Patent and Trademark Office are "principal officers," which require presidential appointment and Senate confirmation, or "inferior officers," which do not. Also at issue is whether, if they are principal officers, the lower court properly cured any Appointments Clause defects in the current statutory scheme.
Gregory Dolin and Dmitry Karshtedt joined us to review oral arguments, discuss the case, and offer their divergent views on the merits in a discussion moderated by Kristen Osenga.
Featuring:
Gregory Dolin, Associate Professor of Law, University of Baltimore School of Law
Dmitry Karshtedt, Associate Professor of Law, George Washington Law School
[Moderator] Kristen Osenga, Austin E. Owen Research Scholar & Professor of Law, U…
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Mar 4, 2021
Deep Dive 166 – The CFPB Taskforce Report on Federal Consumer Financial Law
Recent years have seen a dramatic shift in the way in which American consumers use and shop for financial products and make payments, especially the rapid growth of electronic payments and electronic disclosures. These developments have raised both new opportunities for consumer choice and benefits but also potential new consumer protection threats. At the same time, repeated economic and financial crises, such as the 2020 global COVID pandemic, have illuminated the tensions in the existing institutional framework and suggested a need for modernization to respond to these challenges.
To address these challenges, in 2020 Consumer Financial Protection Bureau Director Kathleen Kraninger formed the CFPB Taskforce on Federal Consumer Financial Law to review the existing consumer financial protection framework and to recommend reforms. On January 5, 2021, the Taskforce published its two-volume report (available here). In this live podcast, Taskforce Chair Todd Zywicki joins us for an overvi…
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Mar 3, 2021
Deep Dive 165 – Fireside Chat on the State of the FTC with Bilal Sayyed
The Federalist Society's Regulatory Transparency Project and Corporations, Securities & Antitrust Practice Group were pleased to host this fireside discussion between Mr. Bilal Sayyed, most-recently Director of the Federal Trade Commission's Office of Policy Planning, and Svetlana Gans, Vice President and Associate General Counsel at NCTA and former Chief of Staff at the FTC. Their conversation covered the current state of the FTC, the challenges facing the agency, and the path ahead in the new administration.
Featuring:
- Bilal Sayyed, Senior Adjunct Fellow, TechFreedom; formerly Director, Federal Trade Commission Office of Policy Planning
- [Moderator] Svetlana Gans, Vice President & Associate General Counsel, NCTA
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Feb 25, 2021
Deep Dive 164 – How Will the Biden Administration Handle China's Intellectual Property Practices?
The Biden administration faces a variety of issues when it comes to China, from trade policy to aggression in the South China Sea. Not to be overlooked, however, is how the new administration will handle China's policies and practices regarding intellectual property.
In this live podcast, experts from across the political spectrum discuss the key considerations at play regarding China and intellectual property and debate the best path forward for the new administration.
Featuring:
- Mark Cohen, Director and Senior Fellow, Berkeley Center for Law and Technology, University of California at Berkeley
- Justin Hughes, Hon. William Matthew Byrne, Jr. Chair Professor of Law, Loyola Law School, Loyola Marymount University
- [Moderator] Brian O'Shaughnessy, Partner, Dinsmore & Shohl LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Feb 23, 2021
Deep Dive 163 – Shapers of Cyber Speech: Silicon Valley and American Discourse
In January, Twitter and Facebook removed President Trump and many of his followers' accounts while Google, Apple, and Amazon cut business ties with Twitter competitor Parler over alleged contract violations, crippling its business. Many on the right are incensed. Others see these actions as an example of polycentric checks-and-balances in the classical liberal tradition. Yet even among those who welcome the silence, many are troubled by Silicon Valley's aggressive actions. But if there is a problem, what is to be done? Between the First Amendment, the bitter partisan divide in Washington, and the need for some content moderation in widely-used social media, what are the realistic regulatory options for curbing Silicon Valley's influence on the national discourse? What are the potential downsides of some of these options?
Featuring:
- Neil Chilson, Senior Research Fellow for Technology and Innovation, Charles Koch Institute
- Billy Easley, Senior Policy Analyst for Technology and Innov…
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Feb 19, 2021
Explainer 23 – Why Did Texas Lose Power?
Professor James W. Coleman joins the podcast to break down the regulatory dynamics of the rolling blackouts Texans have experienced this week.
What role did regulators play in this incident, and what lessons should policymakers pull from it? What is the Electric Reliability Council of Texas, also known as 'ERCOT'? And what are the implications of Texas Governor Greg Abbott's order to halt natural gas exports?
Featuring:
- James W. Coleman, Associate Professor of Law, Southern Methodist University Dedman School of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Feb 17, 2021
Deep Dive 162 – Is Common Carrier the Solution to Social-Media Censorship?
Recently, Big Tech companies have come under fire from all sides for their content moderation decisions. Some argue Big Tech companies are not doing enough to stem the spread of harmful content and misinformation. Others contend Big Tech companies' selective approaches to moderation belies partisan preferences — silencing only certain voices and threatening to undermine democratic values. The recent actions by Big Tech companies regarding President Trump have brought these concerns to a head.
Many different solutions have been proposed during the uproar surrounding the debate. Among these options, some have posited that historical regulation of common carriers can provide a road map for appropriate and effective big tech regulation. Do the market positions of modern giants like Twitter and Facebook generate common-carrier obligations? Should they? Experts discuss these issues, exploring the relevant legal contours and the desirability of the proposed common carrier solution to curb…
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Feb 11, 2021
Explainer 22 – Senator Klobuchar's Antitrust Bill
Asheesh Agarwal and Ashley Baker join the podcast to discuss Senator Amy Klobuchar's recently-announced bill to amend antitrust law.
How would the bill adjust the definition of "exclusionary conduct"? What would it mean for the government's ability to seek civil fines for antitrust violations? And how does the bill fit into the larger conversation about antitrust law in Washington?
Featuring:
- Asheesh Agarwal, Deputy General Counsel, TechFreedom
- Ashley Baker, Director of Public Policy, Committee for Justice
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Feb 4, 2021
Deep Dive 161 – Congressional Review Act: First Branch Gets the Last Word
After living in relative obscurity since its passage in 1996, the Congressional Review Act caught the nation's attention in 2017 when a Republican-led Congress and newly-elected President Trump used it to overturn 14 "midnight" regulations issued at the end of the Obama administration. Some prominent Democratic lawmakers opposed the CRA's framework as well as its individual uses in 2017. Will roles be reversed in 2021 regarding Trump administration "midnight" regulations? Can they be completely reversed?
In this live podcast, experts review the overriding purposes of the CRA and do a deep dive into its technical elements, such as the law's expedited congressional procedures, the types of actions it covers, the number of votes needed to overturn an action, and the consequences of disapproval.
Featuring:
- Todd F. Gaziano, Chief of Legal Policy and Strategic Research & Director, Center for the Separation of Powers, Pacific Legal Foundation
- [Moderator] Susan Dudley, Director, GW Regul…
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Feb 1, 2021
Deep Dive 160 – The Myths and Facts Regarding the EPA’s Benefit-Cost Analysis and Science Transparency Rules
The Environmental Protection Agency recently finalized two new transparency-related rules. The stated purpose of the rule "Increasing Consistency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process" is "to codify procedural best practices for the preparation, development, presentation, and consideration of BCA in regulatory decision-making under the CAA." The rule "Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information" is intended to help shed light on the science used and disseminated by the agency. Both rules have garnered both praise and criticism, and there is significant confusion over what they would actually do. In this live podcast, subject-area experts discuss the rules and examine their likely real-world impact.
Featuring:
- Rachel Jones, Vice President, Energy and Resources Policy, National Association of Manufacturers
- Clint Woods, Policy Fellow for Regulations, Americans for Pr…
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Jan 28, 2021
Deep Dive 159 – Countering the Politicization of Financial Services: Is the Cure Worse than the Disease?
In several recent high-profile cases, banks have conditioned or denied financial services to disfavored industries after campaigns against those industries by advocacy groups. In late-November 2020, the Office of the Comptroller of the Currency responded with a rulemaking that, if adopted, would bar national banks from denying financial services to counterparties on the basis of the "personal beliefs" of management and would prohibit "broad categorical exclusions" of certain industries.
Some have hailed the rulemaking as an overdue counteroffensive against so-called "woke capitalism." Others worry that it would create a "Fairness Doctrine" for banks and question the potential unintended consequences of the rule for freedom of conscience and orderly bank supervision.
This live podcast explores the issues surrounding the politicization of financial services, including the OCC rulemaking and other recent initiatives. This is a subject on which reasonable minds across the political spect…
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Jan 27, 2021
Deep Dive 158 – Courthouse Steps Oral Arguments: AMG Capital Management v. FTC
On January 13, the Supreme Court heard oral arguments in AMG Capital Management v. FTC, a case that could define the scope of the FTC's remedial authority and explore the limits of textualism. The FTC Act authorizes the Commission to seek a "permanent injunction" in federal court to stop "unfair methods of competition" and "unfair or deceptive acts or practices." For many years, the FTC and most courts have interpreted "permanent injunction" to give the FTC the power to require defendants to return money to victims. The Seventh Circuit recently disagreed and held that the term "permanent injunction" does not encompass equitable monetary relief for past misconduct.
To cover the oral arguments, Asheesh Agarwal, Deputy General Counsel at TechFreedom and an alumnus of the FTC, moderated a distinguished panel featuring Alden Abbott, the FTC's General Counsel, and Corbin Barthold, TechFreedom's Director of Appellate Litigation.
Featuring:
- Alden Abbott, General Counsel, Federal Trade Com…
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Jan 26, 2021
Deep Dive 157 – Regulating Land Use During a Pandemic
The COVID-19 pandemic has caused significant changes in urban land use. Where possible, companies have shifted to partial or full remote work, leaving some office buildings to sit empty. Firms in the service industry have sought to move dining, working out, and other activities outdoors where possible. It remains to be seen whether some of all of these changes in behavior will be permanent. What role do policymakers have to play in facilitating efficient land use during this uncertain time?
Featuring:
- Yonah Freemark, Senior Research Associate, Urban Institute
- Emily Hamilton, Senior Research Fellow, Mercatus Center, George Mason University
- [Moderator] Luke Wake, Attorney, Pacific Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Jan 21, 2021
Deep Dive 156 – Incentivizing Drug Development: Patents or Prizes?
Medical innovation has made modern life miraculous by historical standards, as demonstrated by the unprecedented medical response to the COVID-19 pandemic. What made this possible? What's the best way to ensure future innovation in the treatment of viruses like COVID-19, and of other diseases like hepatitis, diabetes, and cancer?
This live podcast explores the legal rules and institutions best-suited to promote the development and commercialization of new drugs and vaccines. One key question is whether to use a prize or patent system to incentivize drug development. Another is whether consumers pay twice for patented drugs developed using funding from the National Institutes of Health. Experts debate these questions and discuss the the legal, economic, and policy considerations at play for efforts to promote new medical innovation.
Featuring:
- David Hyman, Scott K. Ginsburg Professor of Health Law & Policy, Georgetown University
- Brian O'Shaughnessy, Partner, Dinsmore & Shohl LLP a…
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Jan 13, 2021
Deep Dive 155 – International Reference Pricing and Negotiation: Yes or No?
Drug prices are a pressing policy issue. On November 20, 2020, President Donald Trump announced two new rules aimed at reducing drug prices for Medicare beneficiaries. These rules use a system known as reference pricing, which ties the price the federal government pays for patented drugs and treatments to the prices other countries pay. These rules are set to take effect in January 2021. Meanwhile, legislation pending in the U.S. House of Representatives and supported by Speaker Nancy Pelosi would create an International Pricing Index.
These policies enjoy bipartisan support, but they also face bipartisan opposition. Some think the Trump rules do not go far enough, and others argue that reference pricing is bad policy regardless.
In this episode, two distinguished experts who have worked and written extensively on this issue, Prof. Adam Mossoff and Dr. Wendell Primus, join us for a discussion of reference pricing, current policy proposals, and future challenges.
Featuring:
- Adam Mo…
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Jan 6, 2021
Deep Dive 154 – Tech Policy Under the Biden Administration and 117th Congress
In this episode, an expert panel looks at what the new year may bring regarding the hot topics of tech policy. Some key policy debates – such as antitrust and "Big Tech," online speech and Section 230, and the race to 5G – are likely to continue, but what other tech policy conversations may arise? And how might the approach to regulation of the new presidential administration and Congress impact innovation and the tech industry?
Featuring:
- Jennifer Huddleston, Director of Technology & Innovation Policy, American Action Forum
- Blake Reid, Clinical Professor, University of Colorado Law School
- [Moderator] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Dec 29, 2020
Deep Dive 153 – Reboot Conversations: The Future of Drone Policy
There are nearly 500,000 commercial drones registered in the United States, far exceeding recent FAA projections. Fields like photography, agriculture, and public safety have adopted drone services and there are a few programs for long-distance services – like utility line inspection, surveying, and home delivery – popping up around the country.
Despite the rapid maturation of the technology, mass-market services are still years away in the United States in part because of difficult legal and policy questions raised in a recent GAO report to Congress: Should state or federal aviation officials regulate low-altitude drone services and operations? How do regulators encourage a healthy drone services industry while protecting residents' property rights and privacy? Who will build and operate unmanned traffic management systems? This expert panel discussed these topics and more in a Lincoln Network Reboot Conversation co-sponsored by the Regulatory Transparency Project.
Featuring:
-…
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Dec 23, 2020
Explainer 21 – How is Insurance Regulated?
How is insurance regulated in the United States? How are emerging technologies disrupting the industry? And what issues do policymakers face regarding privacy concerns in our era of big data?
Ian Adams joins the podcast to answer these questions and more.
Featuring:
- Ian Adams, Executive Director, International Center for Law & Economics
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Dec 21, 2020
Deep Dive 152 – COVID-19 Regulatory Waivers and Suspensions: What Will the Biden Administration Do?
Following the onset of the COVID-19 pandemic, the Trump administration waived or suspended enforcement of a number of regulations, such as regulations affecting telemedicine. Will the Biden administration continue existing waivers or suspensions as is or take a new tack on regulatory flexibility during the continuing pandemic?
Featuring:
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
- Sally Katzen, Professor of Practice and Distinguished Scholar in Residence & Co-Director of the Legislative and Regulatory Process Clinic, New York University
- [Moderator] Daniel Flores, Senior Counsel, Committee on Oversight and Reform, U.S. House of Representatives
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Dec 17, 2020
Deep Dive 151 – Public Input in Agency Rulemaking
When the FCC put forward its proposed repeal of the net neutrality rule, it received 22 million public comments, by far the largest number any agency has ever received in connection with a rulemaking. The overwhelming public reaction was probably a bit surprising to agency staff, regulatory lawyers, lobbyists, and others who work in the wonky world of regulatory policymaking, where getting a hundred or so comments is perceived as a very robust response rate. And the rule vaulted agency rulemaking into the public consciousness in a way that very seldom happens, with TV host John Oliver and others encouraging everyday Americans to file comments on the proposed rule.
Though the increased public awareness of the power of regulatory agencies is undoubtedly a good thing, what exactly is an agency supposed to do with 22 million public comments? Even discounting for fraudulent or computer-generated comments (of which the agency received millions), does the agency have any obligation to consid…
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Dec 16, 2020
Tech Roundup 12 – Airspace and Drone Regulations
In this episode, Brent Skorup discusses the current state of drone technology, the history of airspace and drone regulations in the United States, and his new paper, "Drone Technology, Airspace Design, and Aerial Law in States and Cities," published by the Mercatus Center.
The paper is available here: https://www.mercatus.org/publications/technology-and-innovation/drone-technology-airspace-design-and-aerial-law-states-and-0.
Featuring:
- Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Dec 10, 2020
Deep Dive 150 – Regulating Business in the Age of COVID-19
COVID-19 has presented unique challenges for state lawmakers as they attempt to address public health and economic concerns. The crisis has also raised significant questions about whether states should reform existing regulatory regimes, and about the propriety of adding further regulatory burdens during an ongoing pandemic.
In this live podcast, Brian Kabateck, Luke Wake, and Clark Neily address vital questions raised by the virus, including how states should balance public health and economic concerns, whether states should change their enforcement priorities during the crisis, and whether this is the right time for states to liberalize economic regulations more generally. The discussion is centered around several proposals from the Regulatory Transparency Project's State & Local Working Group, which recently published a white paper entitled "Ten Reforms to Spur Coronavirus Recovery."
Featuring:
- Brian Kabateck, Founding and Managing Partner, Kabateck LLP
- Luke Wake, Attorney, Pa…
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Dec 9, 2020
Explainer 20 – COVID-19 Vaccine Approval and Distribution
Joel Zinberg joins the podcast to discuss a range of COVID-19 vaccine questions. How has the development process under Operation Warp Speed compared to the normal vaccine development process? Where do the leading vaccines currently stand in terms of FDA approval? And what difficulties might arise during the distribution stage?
Featuring:
- Joel Zinberg, Senior Fellow, Competitive Enterprise Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Dec 8, 2020
Deep Dive 149 – A Conversation with FCC Chairman Ajit Pai
On November 30, 2020, FCC Chairman Ajit Pai joined the Federalist Society's Columbia Student Chapter for a wide-ranging discussion on net neutrality, Section 230, and more, in an online Q&A co-sponsored by the Regulatory Transparency Project.
Featuring:
- Ajit Pai, Chairman, Federal Communications Commission
- [Moderator] Brad Larson, Regulatory Transparency Project Series Chair, the Federalist Society's Columbia Student Chapter
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Dec 7, 2020
Deep Dive 148 – Civil Liberties and COVID-19 Shelter in Place Orders
On November 19, 2020, the Federalist Society's Regulatory Transparency Project and the Memphis Lawyers Chapter co-hosted an online event on "Civil Liberties and COVID-19 Shelter in Place Orders."
Featuring:
- Julia Mahoney, John S. Battle Professor of Law, University of Virginia School of Law
- [Introduction] J. Gregory Grisham, Of Counsel, Fisher & Phillips, LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Dec 2, 2020
Explainer 19 – The Burden of Proof in Competition Law
The House Committee on the Judiciary recently released a report on the state of competition in the digital marketplace. The report, which was the result of a 16-month-long investigation, describes itself as "an attack on how America has approached antitrust for the past 40 years."
One of the recommendations in the report involves shifting the evidentiary burden of proof from the plaintiff to the defendant, particularly in civil mergers challenges, which would entail a significant change to antitrust law.
In this episode, Ashley Baker lays out the current burden of proof framework used in U.S. courts in competition law cases, the role of presumptions in antitrust litigation, and the potential implications of the burden shift proposed in the report.
Featuring:
- Ashley Baker, Director of Public Policy, Committee for Justice
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Nov 30, 2020
Deep Dive 147 – The State of State Data Privacy Laws Post-2020 Election
In the absence of federal data privacy legislation, some states have acted to pass their own laws on the topic. Notably, California voted in favor of Prop 24 placing additional requirements on the CCPA and in favor of stringent consumer privacy requirements. In other cases, such as Michigan, states have established warrant requirements to protect consumer electronic data and citizens' privacy from the government. This expert panel discusses what state data privacy actions mean for the debates surrounding data privacy as well as what might be anticipated in the next sessions of Congress and state legislatures.
Featuring:
Jennifer Huddleston, Director of Technology & Innovation Policy, American Action Forum
Joseph Jerome, Multistate Policy Director, Common Sense Media
[Moderator] Matthew Heiman, General Counsel & Corporate Secretary, Waystar Health; Senior Fellow and Director of Planning, National Security Institute
Visit our website – www.RegProject.org – to learn more, view all o…
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Nov 23, 2020
Deep Dive 146 – Fireside Chat with FTC Commissioner Noah Phillips
The House Judiciary Committee’s Antitrust Subcommittee recently released findings of a 16-month investigation into competition in the digital economy. The 449-page staff report, “Investigation of Competition in the Digital Marketplace: Majority Staff Report and Recommendations”, proposes sweeping changes to U.S. antitrust laws and enforcement that could have far-reaching effects throughout the economy.
This live podcast featuring FTC Commissioner Noah Phillips, Svetlana Gans, and Koren Wong-Ervin features an insightful look at the report, its findings, and its potential ramifications.
Featuring:
- Svetlana Gans, Vice President & Associate General Counsel, NCTA
- Hon. Noah Phillips, Commissioner, Federal Trade Commission
- Koren Wong-Ervin, Partner, Axinn, Veltrop & Harkrider LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Nov 19, 2020
Explainer 18 – Driverless Cars: Balancing Safety and Innovation
In this episode, Ian Adams lays out the current state of driverless car technology, discusses its implications for the disabled community, and breaks down the decisions federal and state policymakers are facing when it comes to regulating the technology.
Featuring:
- Ian Adams, Executive Director, International Center for Law & Economics
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Nov 16, 2020
Deep Dive 145 – The True Extent of Executive Power
On October 20, 2020, the Federalist Society's Georgetown Law Student Chapter and the Regulatory Transparency Project hosted John C. Yoo and Saikrishna B. Prakash for an online discussion on the extent of executive power.
In his new book, "Defender in Chief," Yoo argues that President Trump – despite his populism – has become more often the defender rather than the opponent of the original Constitution. In "The Living Presidency," Prakash counters that Trump, like many modern presidents, has violated the Constitution's grant of executive power.
Featuring:
- Saikrishna B. Prakash, James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law
- John C. Yoo, Emanuel S. Heller Professor of Law; Co-Faculty Director, Korea Law Center; and Director, Public Law & Policy Program, UC Berkeley School of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media…
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Nov 6, 2020
Deep Dive 144 – United States v. Google: Examining the Historic Antitrust Case Against Big Tech
On October 20, 2020, the Department of Justice (DOJ) filed its much-anticipated lawsuit against Google. The case is the most high-profile antitrust challenge since the Microsoft case more than 20 years ago. The Justice Department has alleged that Google monopolized the search and search advertising markets, inhibiting rivals such as Bing, DuckDuckGo, and Yahoo from succeeding and thereby ultimately harming competition and consumers. This distinguished panel debated the merits of the DOJ's antitrust claims, discussed the potential parallels to the Microsoft action, and opined on the government's likelihood of success at trial.
Featuring:
- Geoffrey A. Manne, President and Founder, International Center for Law & Economics
- A. Douglas Melamed, Professor of the Practice of Law, Stanford Law School
- Christopher L. Sagers, James A. Thomas Distinguished Professor of Law, Cleveland-Marshall College of Law
- [Moderator] Brianna S. Hills, Associate, Boies Schiller Flexner LLP
Visit our websi…
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Nov 5, 2020
Deep Dive 134 – Pandemic & Patents: Do Patents Help or Hinder Medical Innovation?
On October 28, 2020 the Federalist Society's Akron Student Chapter hosted George Horvath and Adam Mossoff for a discussion of how patents can affect medical innovation. Specifically, the two discussed how patents have already come into play in the response to COVID-19, and how they will continue to do so as the fight against the pandemic evolves.
Featuring:
George Horvath, Assistant Professor of Law, University of Akron School of Law
Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University
[Moderator] Camilla Hrdy, Associate Professor of Law, University of Akron School of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Oct 28, 2020
Deep Dive 142 – The United States-China Relationship and Intellectual Property
Recent disputes between the United States and China have focused on trade, but perhaps the most potent trade-related issue is not tangible products but intangible property. China's policies and practices involving intellectual property reveal a plan for luring investment and innovation to China for economic advantage.
On this live podcast, world-renowned experts in intellectual property and China's policies discuss whether this constitutes a violation of international norms, and what, if anything, the United States should be doing about it.
Featuring:
- Mark Cohen, Director and Senior Fellow, Berkeley Center for Law and Technology, University of California at Berkeley
- Hon. Paul R. Michel, Chief Judge (ret.), U.S. Court of Appeals for the Federal Circuit
- Hon. Randall R. Rader, Chief Judge (ret.), U.S. Court of Appeals for the Federal Circuit and Honorary Professor, Tsinghua University
- [Moderator] Brian O'Shaughnessy, Partner, Dinsmore & Shohl LLP
Visit our website – www.RegPr…
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Oct 26, 2020
Deep Dive 141 – Interoperability and Data Sharing: An Antitrust Remedy in Search of a Market Problem?
Data portability has been a hot topic of late, from GDPR to CCPA to the FTC's recent Data to Go Workshop. To some, data portability is a consumer right to access and move individual data. For others, data portability means the sharing of larger swaths of data with other services and platforms to lower entry barriers to effective competition.
Although both forms of portability aim to enhance consumer welfare and increase competition, data portability raises a host of issues, such as privacy protection, data security, and intellectual property rights. Additionally, there is evidence that data portability mandates, when used as a competition remedy, is costly, ineffective, and may reduce business incentives, and could entrench incumbents by making it difficult for smaller competitors to change their services and modernize their products.
This comes as many competition agencies and legislatures alike are considering interoperability and data portability mandates to increase competition.…
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Oct 21, 2020
Deep Dive 140 – It Can Be Done Live: The Future of Our Food
The creators of the award-winning documentary, They Say It Can't Be Done, in partnership with the Federalist Society's Regulatory Transparency Project, present It Can Be Done Live — a conversation between entrepreneurs, regulatory experts, and noted academics around creative and bipartisan solutions to global challenges to our shared future. The last of four panel events, It Can Be Done Live: The Future of Our Food, took place on October 1st, 2020.
Over the next 30 years, our global population is expected to grow by more than 2 billion people to 9 billion people inhabiting this planet. How will we feed a rapidly growing population with decreased land and water resources and increased attention to animal welfare and the environment? Is that even possible? The panelists explored the potential of human ingenuity to solve these problems and the conditions necessary to make those solutions a reality. We say it can be done.
Featuring:
- John Mackey, Co-Founder and CEO, Whole Foods Market…
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Oct 19, 2020
Deep Dive 139 – Implications of Data Portability: A Consumer Protection Tool or Burden?
Data portability has been a hot topic of late, from GDPR to CCPA to the FTC’s recent Data to Go Workshop. To some, data portability is a consumer right to access and move individual data. For others, data portability means the sharing of larger swaths of data with other services and platforms to lower entry barriers to effective competition.
Although both forms of portability aim to enhance consumer welfare and increase competition, data portability raises a host of issues, such as privacy protection, data security, and intellectual property rights. Additionally, there is evidence that data portability mandates, when used as a competition remedy, is costly, ineffective, and may reduce business incentives, and could entrench incumbents by making it difficult for smaller competitors to change their services and modernize their products.
This comes as many competition agencies and legislatures alike are considering interoperability and data portability mandates to increase competition…
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Oct 16, 2020
Explainer 17 – A Big Week for Section 230
In this episode, Jennifer Huddleston and Ashkhen Kazaryan break down the recent news related to Section 230 of the Communications Decency Act, including Justice Clarence Thomas's statement, controversy over Twitter and Facebook's moderation practices, and FCC Chairman Ajit Pai's announcement on rulemaking related to the law.
Featuring:
- Jennifer Huddleston, Director of Technology and Innovation Policy, American Action Forum
- Ashkhen Kazaryan, Director of Civil Liberties, TechFreedom
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
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Oct 15, 2020
Deep Dive 138 – It Can Be Done Live: The Future of Our Earth
The creators of the award-winning documentary, They Say It Can't Be Done, in partnership with the Federalist Society's Regulatory Transparency Project, present It Can Be Done Live - a conversation between entrepreneurs, regulatory experts, and noted academics around creative and bipartisan solutions to global challenges to our shared future. The third of four panel events, It Can Be Done Live: The Future of Our Earth, took place on September 24th, 2020.
By 2050, 9 billion humans will share this planet and how we protect it is one of the most important questions of our time. How will we ensure that we can adapt to a changing climate, that we will all have access to clean air and fresh water, and that habitats are protected? While these goals have notable public support, reasonable people differ on the best methods to protect the environment. Are there more effective and less burdensome ways to accomplish these vital goals? The panelists explored the potential of human ingenuity to solv…
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Oct 14, 2020
Deep Dive 137 – Antitrust Populism and the Conservative Movement
On October 7, 2020, the Federalist Society's Pennsylvania Student Chapter and the Regulatory Transparency Project co-sponsored an event on "Antitrust Populism and the Conservative Movement."
During the 1986 Supreme Court confirmation hearings for then-Judge Antonin Scalia, he was asked about his views on antitrust. "In law school, I never understood [antitrust law]," Scalia explained, "I later found out, in reading the writings of those who now do understand it, that I should not have understood it because it did not make any sense then." Some contend that the much-needed coherency in antitrust law was brought about by the Chicago School revolution and the adoption of the consumer welfare standard.
Today, Robert Bork's consumer welfare paradigm faces challenges. Antitrust law is back at a political crossroads, with both sides calling for a politicized approach to address problems such as anti-conservative bias, economic and racial inequality, and a whole host of other issues, while f…
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Oct 13, 2020
Explainer 16 – An Update on Antitrust and Big Tech
Recent weeks have been chock-full of headlines regarding antitrust and big tech companies, from the House Judiciary Antitrust Subcommittee report to the Senate Commerce Committee subpoenas of top CEOs. In this episode, Neil Chilson breaks down these recent developments and discusses how they fit into the broader picture of antitrust law in the United States.
Featuring:
- Neil Chilson, Senior Research Fellow for Technology and Innovation, Charles Koch Institute
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
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Oct 8, 2020
Deep Dive 136 – It Can Be Done Live: The Future of Our Health
The creators of the award-winning documentary, They Say It Can't Be Done, in partnership with the Federalist Society's Regulatory Transparency Project, present It Can Be Done Live - a conversation between entrepreneurs, regulatory experts, and noted academics around creative and bipartisan solutions to global challenges to our shared future. The second of four panel events, It Can Be Done Live: The Future of Our Health, took place on September 17th, 2020.
We are in the throes of a global pandemic that threatens the lives of millions and the way of life for billions more. Our healthcare systems are stretched to their limits. At the same time, innovations are being developed that could move us from treatments to outright cures. How do we ensure that these advancements are safe and effective, but not needlessly delayed when we need them most? The panelists explored the potential of human ingenuity to solve these problems and the conditions necessary to make those solutions a reality. We…
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Oct 7, 2020
Deep Dive 135 – Evaluating the EPA’s Proposals to Retain the Existing Particulate Matter and Ozone Standards
The Environmental Protection Agency recently proposed retaining both the existing particulate matter and ozone primary and secondary standards. Over the last several decades, air quality in the United States has improved dramatically. Though many have advocated for more stringent PM and ozone standards, the environmental and public health imperative for tighter standards is the subject of debate. Unlike in the past, the agency was able to finish the review of these criteria pollutants within the five-year statutory window. What was the basis for retaining these standards, how did the agency review the standards in such a timely fashion, and are these actions supported by the best available science? What are the arguments for and against these proposed actions? And are these standards, if finalized, likely to withstand judicial review? Experts discuss these and other critical questions.
Featuring:
- Jeffrey R. Holmstead, Partner, Bracewell LLP
- Justin Schwab, Founder, CGCN Law, PLLC
-…
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Sep 30, 2020
Deep Dive 134 – It Can Be Done Live: The Future of Our Seas
The creators of the award-winning documentary, They Say It Can't Be Done, in partnership with the Federalist Society's Regulatory Transparency Project, present It Can Be Done Live - a conversation between entrepreneurs, regulatory experts, and noted academics around creative and bipartisan solutions to global challenges to our shared future. The first of four panel events, It Can Be Done Live: The Future of Our Seas took place on September 10th, 2020.
Our oceans are changing rapidly and not for the better. Ocean acidification, rising sea levels, plastic waste, and overfishing are contributing to an unsustainable and unhealthy ecosystem in our seas. Can we find a way to reverse the damage? The panelists will explore the potential of human ingenuity to solve these problems and the conditions necessary to make those solutions a reality. We say it can be done.
Featuring:
- Tom Bell, Professor, Dale E. Fowler School of Law, Chapman University
- Patrick Reasonover, Producer, They Say It Ca…
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Sep 29, 2020
Deep Dive 133 – Medicare for All? A National Single-Payer v. Private Payer Insurance Debate
On September 22, the Federalist Society's Villanova Student Chapter co-sponsored a debate on Medicare for All with the Villanova Law Health Law Society. In this live podcast, experts debate the pros and cons of a single-payer health insurance system, discuss the practical likelihood of such a system being implemented, and compare the United States' approach to health insurance to those of other countries.
Featuring:
- Michael F. Cannon, Director, Health Policy Studies, Cato Institute
- Delphine O'Rourke, Partner, Goodwin Procter LLP
- Ed Weisbart, Chair, Missouri Chapter, Physicians for a National Health Program
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
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Sep 21, 2020
Deep Dive 132 – A Conversation with EPA Administrator Andrew Wheeler: New Rule on Guidance Procedures and More
In May, the Environmental Protection Agency announced a new proposed rule to "establish the procedures and requirements for how the U.S. Environmental Protection Agency (EPA) will manage the issuance of guidance documents subject to the requirements of the Executive order entitled 'Promoting the Rule of Law Through Improved Agency Guidance Documents'." The EPA indicated that they "intended to increase the transparency of EPA's guidance practices and improve the process used to manage EPA guidance documents."
The comment period for the proposed rule closed in late June. This live podcast features an update and an informative conversation with Administrator Wheeler and Jeffrey Holmstead.
Featuring:
- Andrew Wheeler, Administrator, Environmental Protection Agency
- [Moderator] Jeffrey Holmstead, Partner, Bracewell LLP
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
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Sep 10, 2020
Tech Roundup 11 – TikTok's Running Clock
Citing national security concerns, the Trump administration has ordered TikTok's Chinese parent company, Bytedance Ltd., to sell U.S. operations of the popular video-sharing app to an American company by November 12. As the deadline inches closer, three major American companies have come to the fore as prospective purchasers but no sale has been completed, due in part to complications imposed by the Chinese government.
How might this standoff play out? Does TikTok pose a significant enough national security threat to warrant the forced sale? And how does this situation fit into the broader picture of U.S.-China relations?
Experts discuss.
Featuring:
- Matthew Feeney, Director, Project on Emerging Technologies, The Cato Institute
- Jamil Jaffer, Founder & Executive Director, National Security Institute
- [Moderator] Ashkhen Kazaryan, Director of Civil Liberties, TechFreedom
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on socia…
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Sep 8, 2020
Deep Dive 131 – Free Speech in the Digital Era: Section 230 and the FCC
Section 230 of the Communications Decency Act provides liability protection to platforms, internet service providers, and other online intermediaries for third-party content they host or republish. It also provides liability protections for actions taken "in good faith" by such entities to moderate content. Section 230 has recently come under scrutiny from President Trump, members of Congress, and others who have raised questions about the appropriateness of these protections and their continued viability "in the Age of Twitter."
In May, President Trump issued an Executive Order that directed the National Telecommunications and Information Administration (NTIA) to file a petition for rulemaking with the Federal Communications Commission (FCC) proposing regulations to clarify the scope of Section 230. The FCC is currently soliciting public comment on the NTIA petition, which was filed on July 27.
In this live podcast, panelists discuss the background of Section 230 and reflect on whet…
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Sep 3, 2020
Deep Dive 130 – FTC v. Qualcomm: The Ninth Circuit on Tech Antitrust
This live podcast discusses the Ninth Circuit's recent opinion in FTC v. Qualcomm, in which the court reversed the Federal Trade Commission's 2019 trial court win. The Ninth Circuit ruled that Qualcomm did not violate antitrust law through its licensing practices for standard-essential patents.
John Shu, a professor, attorney, and legal commentator, discusses the ruling and examines the history, arguments, and ramifications of the case.
Featuring:
John Shu, Attorney and Legal Commentator
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
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Sep 2, 2020
Deep Dive 129 – Environmental Citizen Suits and SEPs: Do Constitutional and Nondelegation Concerns Outweigh Environmental Benefits?
Environmental laws such as the Clean Air Act allow private plaintiffs and environmental advocacy groups to file citizen suits alongside the government's environmental enforcement actions against polluters. The Environmental and Natural Resources Division of the Department of Justice is now pushing to end the practice in a federal case involving DTE Energy, Michigan's largest electrical utility and a major operator of natural gas pipelines. The Sierra Club intervened on the government's side and is seeking court approval of a side agreement in which DTE would close three coal plants, in addition to the penalties and mitigation secured by the Justice Department.
Such Supplemental Environmental Projects (or SEPs) are supposed to supplement the government's enforcement actions. But critics - and now DOJ - argue that SEPs often supplant the penalty that the government has sought in its enforcement action. Such provisions, critics say, amount to a delegation of a core executive function tha…
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Aug 27, 2020
Deep Dive Episode 128 – Can States Trump Interstate Commerce?
Asserting their sovereign interests or “states' rights,” many states are increasingly attempting to inject state officials’ policy preferences on national and global issues through state legislation or regulation on myriad subjects including energy, the environment, immigration, drugs, labor, health, food, and transportation. In what ways does the Interstate Commerce Clause, or the so-called Dormant Commerce Clause, limit the scope of the constitutionally legitimate spheres of these kinds of state legislation or regulation? In other words, what is the meaning of federalism in a constitutional system designed to facilitate interstate commerce? And, what is the proper judicial role, if any, in policing state laws that seek to interfere or have the effect of interfering with the free flow of commerce among the several states?
These questions are subject to considerable debate, with significant disagreement even within normally like-minded camps. Some conservatives and liberals a…
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Aug 25, 2020
Deep Dive 127 – Should the Fed Create Fedcoin, Digital Dollars, and Fed Accounts?
As cryptocurrencies have proliferated in the private sector, central banks are now contemplating getting into the game. Venezuela tried unsuccessfully to popularize its currency with the digital petro. China may be more successful with its plan to digitize the yuan.
Now, some are saying the U.S. Federal Reserve should issue its own cryptocurrency, with names like "Fedcoin" and the "digital dollar." Most proposals for this national cryptocurrency also include direct consumer deposit accounts with the Fed.
Proponents give various reasons why the Fed should issue digital currency, from protecting the dollar competition with China to relieving the poor from high bank fees. But opponents cite multiple problems such a system would have from privacy concerns with the Fed having direct access to consumer spending data, to enabling currency manipulation, to crowding out innovation from private cryptocurrencies and payment systems.
Featuring:
- J. Christopher Giancarlo, Senior Counsel, Will…
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Aug 19, 2020
Deep Dive 126 – Minutes to Midnight, or Teeing Up a Second Term?
The next presidential inauguration will be on January 20, 2021. The six months between then and today will involve a flurry of regulatory activity, just as the final months of presidential terms always do. Whether the next inauguration features Donald Trump or Joe Biden, agencies will try to complete as many regulatory proceedings as possible before the inauguration, with an eye to not just the end of the current presidential term but also the beginning of the next one.
What actions should we expect agencies to take? To what extent can the current administration issue "midnight rules" affecting policy beyond January 20? And to what extent could the Congressional Review Act permanently erase those rules?
Featuring:
- Prof. Jack Beermann, Harry Elwood Warren Scholar and Professor of Law, Boston University Law School
- Mr. Daniel Pérez, Senior Policy Analyst, GW Regulatory Studies Center
- [Moderator] Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Cen…
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Aug 13, 2020
Deep Dive 125 – The New Title IX Rules
In 2017 the Department of Education withdrew the Obama administration's guidance documents on Title IX sexual harassment. The next year it issued a notice of proposed rulemaking under the Administrative Procedure Act. The department received more than 124,000 comments on the proposal and held meetings with many interested parties. In May, the Department released its new rules - the first such rulemaking on a major Title IX issue since 1975.
The new rules require colleges to use more robust procedures when adjudicating student-on-student allegations of sexual assault, including by using a live hearing where representatives of each side can cross-examine adverse witnesses. The rules also narrow the definition of sexual harassment cases that schools must address under Title IX, and limit university liability for off-campus events.
Lawsuits from blue-state Attorneys General and activist groups hope to block all or part of the rules. Three of these lawsuits have sought preliminary injunct…
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Aug 10, 2020
Deep Dive 124 – Labor Law Compliance Issues Posed by COVID-19
COVID-19 has created many challenges for employers, including making it more difficult for them to comply with labor and employment laws. Recently-enacted statutes like the First Families Act and the CARES Act, as well as existing laws like the National Labor Relations Act and Title VII of the Civil Rights Act, have presented significant compliance challenges for employers.
Featuring Tammy McCutchen and G. Roger King, this live podcast reviews federal and state labor and employment issues and options for employers to consider.
Featuring:
- G. Roger King, Senior Labor and Employment Counsel, HR Policy Association
- Tammy McCutchen, Principal, Littler Mendelson PC
Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.
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Aug 6, 2020
Deep Dive 123 – Antitrust Investigations into Big Tech Companies
American tech companies like Google, Apple, Facebook, and Amazon are some of the most successful companies in the world. Recently, these companies have faced various criticisms, with some questioning if they are violating the antitrust laws. Antitrust investigations are ongoing by the DoJ, FTC, and the attorneys general of many states. On Wednesday, July 29, a Congressional hearing was held with the companies' CEOs on the question of online platforms and market power.
This live podcast explores what these investigations tell us about innovation and antitrust, as well as the current concerns regarding these firms' market power and conduct. Can current antitrust law and competition policy address this dynamic market? How might antitrust enforcement impact innovation? What do these investigations and calls to break up big tech companies tell us about the future of antitrust enforcement and competition policy?
Featuring:
- Thomas Hazlett, H.H. Macaulay Endowed Professor of Economics, Cle…
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Jul 28, 2020
Deep Dive 122 – New Labor Department Rule: Taking on ESG Investment Risk to American Retirement Security
A sustained effort by activist investors to align corporate policy and investing with a progressive policy agenda could be shortchanging the retirement savings of millions of Americans. Data show that investments tied to perceived environmental, social, and governance principles, or ESG, generally offer lower yields than the S&P 500 benchmark, but activists are pushing to use trillions of dollars in pension and retirement plans to discriminate against various industries. The trend could have profound implications for public and private pensions programs and other retirement savings plans. ESG investing might also pose a challenge to the fiduciary responsibility of asset management professionals to act in the best financial interests of the people they serve, a bedrock concept in financial planning.
The U.S. Department of Labor is preparing to ensure ESG investing does not undermine protections enshrined in the Employee Retirement Income Security Act (ERISA). A proposed rule would codi…
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Jul 22, 2020
Deep Dive 121 – Book Review: The Dubious Morality of Modern Administrative Law
Prof. Richard Epstein's The Dubious Morality of Modern Administrative Law examines how the growth of the administrative state as a result of FDR's New Deal has coincided with many different Supreme Court decisions since the 1936-37 term of the Court that legitimized the reach of different administrative agencies by giving them far more control over substantive issues through different forms of judicial deference to agency interpretation, such as Auer and Chevron deference.
In this live podcast, Prof. Adam J. White interviews Prof. Epstein about his new book, and then Prof. Epstein fields caller questions on administrative law.
Featuring:
- [Moderator] Prof. Adam J. White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University
- Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
Visit our web…
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Jul 13, 2020
Deep Dive 120 – FTC Rulemaking: Underutilized Tool or National Nanny Renewed?
This expert panel examined recent calls for the Federal Trade Commission (FTC) to engage in substantive rulemaking under the competition and consumer-protection prongs of Section 5 of the FTC Act. How far does FTC statutory authority under 6(g) extend? Is rulemaking appropriate as a matter of policy? How has FTC rulemaking fared in the past and what guideposts should apply?
Opening Remarks:
- Noah Phillips, Commissioner, Federal Trade Commission
Panel Featuring:
- James Cooper, Associate Professor of Law and Director, Program on Economics & Privacy, Antonin Scalia Law School, George Mason University
- William MacLeod, Partner, Kelly, Drye & Warren LLP
- Joshua Wright, Executive Director, Global Antitrust Institute, Antonin Scalia Law School, George Mason University
- [Moderator] Svetlana Gans, Vice President & Associate General Counsel, NCTA
- [Introduction] Nathan Kaczmarek, Director, Article I Initiative | Director, Regulatory Transparency Project
Visit our website – www.RegProj…
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Jul 7, 2020
Deep Dive Episode 119 – FTC Remedial Authority: Powers, Process, and Suggestions for Reform
How does the Federal Trade Commission (FTC) calculate consumer injury and civil penalties in consumer protection matters? This teleforum will discuss the FTC’s remedial powers, process, and suggestions for reform, including how the Supreme Court’s recent ruling in Liu v. SEC and other cases may impact the FTC going forward.
Featuring:
James Cooper, Associate Professor of Law and Director, Program on Economics & Privacy, Antonin Scalia Law School, George Mason University
Andrew Stivers, Deputy Director for Consumer Protection, Bureau of Economics, Federal Trade Commission
Berin Szóka, Senior Fellow, TechFreedom
John Villafranco, Partner, Kelly, Drye & Warren LLP
[Moderator] Svetlana Gans, Vice President & Associate General Counsel, NCTA
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Jul 2, 2020
Explainer 15 – Equality in Government Contracting
In the midst of the COVID-19 pandemic, the federal government is waiving affirmative action requirements in federal construction projects. Wen Fa discusses whether state and local regulations should follow suit.
Featuring:
- Wen Fa, Attorney, Pacific Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Jun 24, 2020
Deep Dive 118 – Can Patents and Bayh-Dole Fuel Innovation in the Time of COVID-19?
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Jun 22, 2020
Deep Dive 117 – How to Approach Data Collection and Breaches in the Age of COVID-19
In an effort to combat the spread of COVID-19 and contain its impact, nations across the world are exploring the use of various methods of tracking the virus. Some – such as Singapore and South Korea – have established national surveillance networks that operate in real-time to assist in this task, while others – like the United States – have largely delegated this effort to individual states, which can result in a patchwork of different surveillance activities. Private companies – like Google and Apple – have also stepped in to assist in this effort.
Increased visibility into the virus’s spread appears crucial to public health authorities’ efforts but concerns have been raised that such widespread data collection activities may be overly intrusive and that privacy interests have not been adequately considered in the effort to stop the spread of this virus. Further, some question the security of personal health data, especially as hackers and cyber-criminals turn their…
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Jun 8, 2020
Tech Roundup 10 – Trump's Executive Order on Online Censorship
What is the legislative and legal background of the recent Executive Order on Preventing Online Censorship, how will it affect Section 230 of the Communications Decency Act, and what may be the unforeseen consequences of this move? These and other questions are addressed in this episode.
Featuring:
- [Host] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
- Ashkhen Kazaryan, Director of Civil Liberties, TechFreedom
- Neil Chilson, Senior Research Fellow for Technology and Innovation, Charles Koch Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Jun 3, 2020
Deep Dive 116 – Surviving COVID-19: The Small Business Perspective
As small businesses across the country grapple with the current and potential impacts associated with COVID-19, the National Federation of Independent Business continues to track the latest developments from healthcare officials, congress and the administration. Please join us to hear about how the organization is supporting small businesses during this time, and which government policies are positively and negatively affecting business operations today and down the road.
Featuring:
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Jun 1, 2020
Deep Dive 115 – Public-Private Partnerships: The Future of Cybersecurity?
While most agree cybersecurity is a vital part of modern national security and see cyber-attacks as an evolving and dangerous threat, the question of how best to utilize the resources of the United States to protect the nation against cyber-attacks is far more contested.
Many in the cybersecurity space see the path forward as including more public-private partnerships since private companies are often more directly impacted by cybercrime than the federal government and can be more dynamic in their responses.
However, given the criticism of these partnerships in the past, are they truly the best way to protect the public? In this time of quarantine, American society has become more dependent on internet technology, so examining how our nation protects itself and its companies digitally has never been more important.
Are public-private partnerships the best way to fight cybercrime? If not, can the government alone protect the nation from cybercrime? If these partnerships are the way o…
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May 29, 2020
Deep Dive 114 – Is Artificial Intelligence Biased? And What Should We Do About It?
Journalists and academics seem convinced that artificial intelligence is often biased against women and racial minorities. If Washington’s new facial recognition law is a guide, legislators see the same problem. But is it true? It’s not hard to find patterns in AI decisions that have a disparate impact on protected groups. Is this bias? And if so, whose?
Do we assume the worst about decisions with a disparate impact – applying a kind of misanthropomorphism to the machine – or can we objectively analyze the factors behind the decisions? If bias boils down to not producing proportionate results for each protected class, is the only remedy to impose a “proportionate result” constraint on AI processing – essentially imposing racial, ethnic, and gender quotas on every corner of life that is touched by AI?
Featuring:
- Stewart Baker, Partner, Steptoe & Johnson LLP
- Curt Levey, President, Committee for Justice
- Nicholas Weaver, Researcher, International Computer Science Ins…
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May 28, 2020
Deep Dive 113 – Executive Orders on Guidance: Implications and Next Steps
In October of 2019, President Trump issued an executive order that imposed a series of restrictions and requirements on Federal agencies, and even included a requirement that agencies publish their guidance on the internet. The purpose of the executive order was to promote transparency and democratic fairness in the administrative law process. This has led to a renewed debate over what the relationship should be between the executive branch and the administrative state, and has also led to some disagreement over whether the executive order represented any meaningful change from the status quo.
Featuring:
- Hon. Steven Bradbury, General Counsel (and performing the functions and duties of Deputy Secretary), U.S. Department of Transportation
- John Walke, Director, Clean Air Project, Climate & Clean Air Program, Natural Resources Defense Council
- Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Sca…
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May 22, 2020
Explainer 14 – Options for Data Privacy Enforcement
How can data privacy enforcement provide clarity for businesses while protecting the public from harm? What might be the best enforcement options available to the FTC and state attorneys general going forward? Jennifer Huddleston and Ian Adams discuss.
Featuring:
- Ian Adams, Executive Director, International Center for Law & Economics
- Jennifer Huddleston, Director of Technology and Innovation Policy, American Action Forum
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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May 21, 2020
Deep Dive 112 – FTC Hot Topics with Commissioner Christine Wilson: Regulatory Reform, Privacy, Antitrust, & Beyond
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May 15, 2020
Deep Dive 111 – The Truth About the EPA’s Science Transparency Rule
In 2018, the Environmental Protection Agency proposed a rule entitled “Strengthening Transparency in Regulatory Science.” The proposal garnered over 9,000 unique public comments. On March 18, 2020, EPA published a supplemental notice of proposed rulemaking that, among other things, states that the EPA would be required to make public important information underlying both significant regulatory actions and influential scientific information disseminated by the Agency. Why is this EPA effort to promote transparency important? Why is it controversial? This episode will discuss and evaluate the proposed rule in light of the March 2020 supplementary notice.
Featuring:
- Dr. Richard B. Belzer, Associate Fellow, R Street Institute
- Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, George Mason University Antonin Scalia Law School
- [Moderator] Daren Bakst, Senior Research Fellow, The Heritage Foundation
V…
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May 14, 2020
Deep Dive 110 – Community Reinvestment Act: Remedy or Relic?
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May 12, 2020
Explainer 13 – COVID-19 Contact-Tracing and Data Privacy
As countries, states, and locales have worked to get a handle on the spread of the COVID19 pandemic, one solution that appears to have been effective is thorough contact-tracing. In this episode, Jennifer Huddleston and Brent Skorup discuss how contact-tracing might work here, what privacy concerns it might involve, and what it means for data privacy going forward.
Featuring:
- Jennifer Huddleston, Director of Technology & Innovation Policy, American Action Forum
- Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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May 4, 2020
Deep Dive 109 – Regulating by Consent Agreement: Examining FTC’s YouTube Settlement and Beyond
On September 4, 2019, the Federal Trade Commission announced sweeping regulatory changes to the operation of YouTube, one of the internet’s most popular websites. YouTube has 2 billion monthly active users and features content from more than 50 million individual creators, most of whom are small businesses or individuals. Many of the creators affected earn money using YouTube and stand to lose, in aggregate, hundreds of thousands if not millions of dollars from these regulatory changes. Some will need to restructure their business model. The changes also subject content creators to increased risk of prosecution and stiff fines. Yet these significant regulatory changes were never put before a legislature; none of the content creators or users of the website were privy to the rationale or design of the regulation; and there was no public process for comment. Instead, the new regulation was confidentially negotiated between YouTube and FTC staff and put into place by a court.
FTC settl…
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Apr 28, 2020
Deep Dive 108 – Regulating Home-Sharing and Home-Based Businesses
In this episode, Brooks Rainwater and Jon Riches discuss developments in state and local regulations surrounding home-sharing and home-based businesses. How do we balance safety and public goods with innovation and entrepreneurialism?
Featuring:
- Brooks Rainwater, Senior Executive & Director, Center for City Solutions, National League of Cities
- Jon Riches, Director of National Litigation, Goldwater Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Apr 27, 2020
Tech Roundup 9 – COVID-19 and the Internet: A Conversation with Ajit Pai
In this episode, Ajit Pai joins Adam Thierer and Brent Skorup to discuss the principles driving the Federal Communications Commission in recent years, the "Keep Americans Connected" pledge, and how things have changed for the FCC in the midst of the COVID-19 pandemic.
Featuring:
- Ajit Pai, Chairman, Federal Communications Commission
- Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
- [Host] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Apr 24, 2020
Deep Dive 107 – COVID-19 in the Workplace: Mandated Paid Sick Leave
On March 18, the Senate passed and the President signed into law the “Families First Coronavirus Response Act.” Among other things, this new law, set to take effect no later than April 2, 2020, creates a new paid sick leave mandate for all employers with fewer than 500 employees and expands the application of the Family Medical Leave Act to cover all employers in certain circumstances related to the coronavirus. Karen Harned and James Paretti will walk listeners through key provisions of this new law.
Featuring:
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
- James A. Paretti, Shareholder, Littler Mendelson P.C.
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Apr 21, 2020
Deep Dive 106 – Should Big Tech Platforms Be Viewpoint Neutral? Should the Government Care?
On March 4, 2020, the Regulatory Transparency Project sponsored a symposium with the University of Pennsylvania Federalist Society student chapter. The second panel of the symposium was titled "Should Social Media Platforms Be Viewpoint Neutral? Should the Government Care?"
Featuring:
- Adam Candeub, Michigan State University College of Law
- Carrie Goldberg, C. A. Goldberg PLLC
- Arthur Milikh, Heritage Foundation
- Nadine Strossen, New York Law School
- Moderator: Neil Chilson, Charles Koch Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Apr 16, 2020
Deep Dive 105 – Do We Need to Rethink Antitrust for Big Tech?
On March 4, 2020, the Regulatory Transparency Project sponsored a symposium with the University of Pennsylvania Federalist Society student chapter. The first panel of the symposium was titled "Do We Need to Rethink Antitrust for Big Tech?"
Featuring:
- Roger Alford, Notre Dame University
- Jay Himes, Labaton Sucharow LLP
- Salil Mehra, Temple University School of Law
- Moderator: Christopher Yoo, University of Pennsylvania Carey School of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Apr 14, 2020
Deep Dive 104 – The Allen v. Cooper Decision, or, Blackbeard's Revenge
The recent Supreme Court ruling in Allen v. Cooper is the latest development in a decades-long series of Congressional enactments and Supreme Court rulings over whether and how Congress can abrogate the sovereign immunity of States from intellectual property infringement suits. This all-star panel will discuss the Court’s most recent decision in the context of the evolution of the Court’s sovereign immunity jurisprudence, the policy concerns of Congress and intellectual property owners, and where we might go from here.
Featuring:
- Prof. John T. Cross, Grosscurth Professor of Intellectual Property Law and Technology Transfer, University of Louisville Brandeis School of Law
- Prof. Ralph Oman, Pravel, Hewitt, Kimball and Kreiger Professorial Lecturer in Intellectual Property and Patent Law
- Prof. Steven Tepp, Professorial Lecturer in Law, George Washington Law, and President and Founder of Sentinal Worldwide
- Prof. Ernest A. Young, Alston & Bird Professor, Duke Law School
Visit…
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Apr 13, 2020
Deep Dive 103 – Ajit Pai: The FCC and the Pandemic
Join us as Federal Communications Commission Chairman Ajit Pai discusses how the FCC is addressing the COVID-19 pandemic. What measures has the FCC taken to date, and what is planned in the future?
Featuring:
- Ajit Pai, Chairman, Federal Communications Commission
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Apr 9, 2020
Deep Dive 102 – COVID-19 and Regulatory Reform Efforts at HHS
Join us as the U.S. Department of Health and Human Services Deputy Secretary Eric Hargan discusses the role of his agency. Likely topics include COVID-19, as well as the agency’s regulatory reform efforts.
Featuring:
- Eric Hargan, Deputy Secretary of the Department of Health and Human Services (HHS)
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Apr 7, 2020
Deep Dive 101 – Litigation Update: Neora v. FTC
On November 1, 2019, Neora, a Texas-based healthcare products multi-level marketing (MLM) business, filed suit in Illinois Federal Court against the FTC. The suit alleges that throughout three years of enforcement actions, the agency attempted to unilaterally and retroactively change the law governing MLMs without Congressional action or formal rulemaking. Neora asserts that in these types of regulatory enforcement actions other businesses are not only forced to try to prove their innocence, but they are forced to prove their innocence under standards that are not set forth by existing law. They argue that other businesses similarly situated are either coerced into resolutions/settlements or forced to fight.
Later on the same day, the FTC filed suit against Neora in New Jersey. The FTC asserts that Neora was unlike legitimate MLMs and was a “pyramid scheme” since its inception. The FTC argues that the company has focused on recruiting new distributors or so-called brand partners (…
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Apr 6, 2020
Deep Dive 100 – The Limits of EPA Authority: Supplemental Environmental Projects
The Environment and Natural Resources Division of the Department of Justice recently announced a policy that the Division would no longer agree to Supplemental Environmental Projects (SEPs) in settlement agreements or judicial consent decrees resolving violations of environmental laws. As defined by EPA, a SEP is an environmentally beneficial project or activity that is not required by law, but that a defendant agrees to undertake as part of the settlement of an enforcement action. Under EPA’s SEPs policy, the agency (through the Division) will seek a lesser civil monetary penalty in settling a civil enforcement action than what it would otherwise seek in the settlement in exchange for a defendant’s voluntary commitment to perform a SEP. Because SEPs purposefully trade civil monetary penalties payable to the U.S. Treasury for projects selected or approved by EPA that Congress either has not approved or had no occasion to consider, do SEPs violate the Miscellaneous Receipts Act and…
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Apr 3, 2020
Deep Dive 99 – Promoting a More Adaptable Physician Pipeline
The COVID-19 pandemic has the medical community scrambling to address shortages of supplies and some clinicians to properly care for all of the many patients who will present soon with significant symptoms. Among the problems is a lack of sufficient numbers of physicians in some of the communities that have been hardest hit by the spread of the virus.
This episode will examine the current process for educating, training, and licensing physicians in the US, with a focus on whether the current process is sufficiently flexible to adjust as needed to accommodate changing demand by patients. James Capretta, the author of a recent paper on the subject ("Promoting a More Adaptable Physician Pipeline" released as part of the Regulatory Transparency Project), and Chris Pope, Senior Fellow at the Manhattan Institute, will briefly discuss the historical context of the US' licensing system, the basic steps that are involved, the federal government's role in financing residency training, the immig…
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Mar 30, 2020
Deep Dive 98 – Regulatory Reforms and the COVID Pandemic
Governments at all levels are figuring out how to make sure sick people are treated and that coronavirus doesn’t spread. Some experts are now drawing attention to possible regulatory reforms (https://www.rstreet.org/2020/03/18/small-regulatory-reforms-that-can-help-people-during-the-pandemic/), as early reports suggested that federal agencies may have prevented private testing for COVID-19 before slowly issuing approval.
Others are calling for state-level reforms, such as changes to occupational licensing requirements. Existing occupational licensing laws arguably restrict medical professionals, including nurses and pharmacists, from practicing to the full scope of their training by limiting what duties they can take on and making nurses practice under doctor supervision. Licenses rarely transfer across state lines. This means that qualified doctors in one state cannot practice in other states, severely restricting their ability to provide telehealth services to potential patients.…
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Mar 26, 2020
Tech Roundup 8 – The Future of Facial Recognition
In this episode, Matthew Feeney hosts a discussion with Ashkhen Kazaryan and Caleb Watney on the approach regulators might take to the brave new world of facial recognition technology.
Featuring:
- Ashkhen Kazryan, Director of Civil Liberties, TechFreedom
- Caleb Watney, Fellow, Technology and Innovation, R Street Institute
- [Moderator] Matthew Feeney, Director, Project on Emerging Technologies, Cato Institute
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
Additional Resources:
- Brookings Institution: https://www.brookings.edu/blog/techtank/2019/06/20/what-are-the-proper-limits-on-police-use-of-facial-recognition/
- Cato Institute: https://www.cato.org/blog/should-police-facial-recognition-be-banned
- Tech Policy Corner: https://techpolicycorner.org/creeped-out-congress-grills-fbi-on-facial-recognition-tech-37a1123f48f8
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Mar 23, 2020
Deep Dive 97 – Certificate of Need Laws and Healthcare Access
38 states have certificate of need (CON) laws which make it illegal for healthcare providers to offer healthcare services to patients without first getting government permission. Defenders of CON laws assert that they are needed to control healthcare costs. However, these anti-competitive laws may violate a host of constitutional provisions, including state anti-monopoly clauses. Many courts have observed that CON laws are in fact anti-competitive but despite legal challenges, a majority of states have CON laws on the books today.
This episode discusses recent and current state CON law litigation, including the pending Singh v. North Carolina Dept of Health & Human Services matter.
Featuring:
- Christina Sandefur, Executive Vice President, Goldwater Institute
- Josh Windham, Attorney, Institute for Justice
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Mar 20, 2020
Deep Dive 96 – New York’s “Rent Stabilization” Law
Does New York’s “rent stabilization” law violate the federal Constitution? The law, which regulates approximately 1 million apartments in New York City, was enacted more than fifty years ago and remains in effect based on an every-three-year declaration of a housing “emergency.” The law does not merely regulate rent levels, it also limits a property owner’s right to determine who uses an apartment, to convert the property to new uses, and to occupy the property for use by the owner and his or her family.
A lawsuit filed last year asserts that the New York law—including 2019 amendments that significantly increased the restrictions on property owners—violates due process and effects both physical and regulatory takings of the property that it regulates. New York City, New York State, and tenant advocacy groups have moved to dismiss the action.
Rent control is not just a New York phenomenon. Other cities across the country have enacted, or are considering, rent regulati…
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Mar 19, 2020
Explainer 12 – A Recipe for A Better World: Nine Parts Innovation, One Part Regulation
In this Explainer episode, Jeff Stier tells the innovative story of Impossible Burger, a company that developed leghemoglobin to mimic the taste of meat in non-meat-based products. Instead of rushing to regulate this new development, FDA took a hands-off approach, allowing the company to bring a beneficial, and widely recognized as safe, product to market. Jeff argues that innovation, rather than heavy-handed regulation, ought to be the primary way of reducing harm.
Featuring:
- Jeff Stier, Senior Fellow, Consumer Choice Center and Taxpayers Protection Alliance
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Mar 16, 2020
Deep Dive 95 – Update on FISA Reauthorization and Reform
On March 15, 2020, certain authorities under the Foreign Intelligence Surveillance Act (FISA) will expire absent renewal by Congress. The authorities set to expire fall into three categories: 1) the business records provision (often referred to as Section 215) that allows for collection of call detail records, among other things; 2) roving wiretaps; and 3) the lone wolf provision. On March 11, the House passed a compromise bill that the Senate will soon consider. However, several Republican Senators have already urged President Trump to veto the reauthorization bill, should it pass both chambers.
This decision point comes at a time of heightened scrutiny, given the recent Department of Justice Inspector General report addressing the FBI's use of FISA while investigating the 2016 presidential election and a Foreign Intelligence Surveillance Court of Review order expressing "serious concerns about the accuracy and completeness" of the FBI's FISA applications in that case. Please join us…
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Mar 12, 2020
Deep Dive 94 – FTC v. Qualcomm
In January 2017, the Federal Trade Commission (FTC) filed an antitrust complaint against Qualcomm in the Northern District of California. The FTC alleged that Qualcomm had unlawfully monopolized the market for certain semiconductors important in smartphone technology. Among other things, the FTC claimed that Qualcomm had maintained its market position by requiring chip customers to license their chips separately (known as the “no license, no chips” policy) and had refused to license its standard-essential patents (SEPs) to competitors.
Judge Lucy Koh held a bench trial in January 2019 and issued a decision in favor of the FTC in May 2019. In a lengthy opinion, the court determined that Qualcomm’s “no license, no chips” policy violated antitrust law and that Qualcomm had a separate antitrust duty to deal with its competitors. Judge Koh then issued an injunction that, among other things, prohibited Qualcomm from conditioning the supply of chips on a customer’s patent-lic…
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Mar 9, 2020
Deep Dive 93 – The Future of the National Environmental Policy Act
For the past 50 years, the National Environmental Policy Act (NEPA) has required that the federal government assess the potential environmental impact of any major development projects involving the federal government.
Proponents of NEPA argue that changes to the NEPA review process would threaten sensitive wildlife habitats and roll back protections against climate change. Others argue, however, that the current NEPA process unnecessarily delays critical infrastructure projects, such as the building of highways, roads, pipelines, and telecommunications networks, without any material benefit in return.
In this episode, Professors David Adelman and James Coleman will discuss the recently proposed changes to the NEPA process and examine the potential effects.
Featuring:
- David Adelman, Harry Reasoner Regents Chair in Law, The University of Texas at Austin School of Law
- James Coleman, Associate Professor of Law, Southern Methodist University Dedman School of Law
Visit our website…
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Mar 4, 2020
Deep Dive 92 – The Constitutionality of California’s Cap and Trade Agreement with Quebec
The state of California and the Canadian province of Quebec have agreed to link their cap-and-trade systems for carbon emissions – these systems require polluters to pay for a permit when they emit greenhouse gases.
Now the federal government is suing California. The lawsuit alleges that this agreement violates the Constitution, which says states can’t make international treaties or enter into compacts with foreign powers without the consent of Congress. And it also alleges that California’s agreement discriminates against foreign commerce and interferes with the federal government’s exclusive authority over foreign affairs.
The lawsuit raises important issues about federal and state power that are as old as America but have rarely been tested in Court. Listen to expert law professors talk about how the Courts might look at these provocative and urgent questions and the challenge of climate regulation.
Featuring:
-James W. Coleman, Associate Professor of Law, Southern Method…
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Mar 3, 2020
Deep Dive 91 – The Expected New Title IX Rules
The Education Department’s Office for Civil Rights (OCR) is expected to issue in the coming weeks its long-awaited new rules for colleges and other educational institutions to follow in handling allegations of campus sexual harassment and assault. A highly controversial draft of the new rules has almost completed a notice-and-comment process launched in September 2017 by Secretary of Education Betsy DeVos. She said that the Obama Administration's OCR's decrees on such matters, and the processes used by virtually all universities, were stacked against accused students, almost all of them male, and often harmed accusers as well.
Spurred by judicial decisions and other evidence showing that innocent young men have been railroaded out of college with life-changing, often ruinous consequences, OCR issued its more than 30,000 words of proposed rules and comments in November 2018. The proposals would require numerous procedural safeguards, narrow the definition of sexual harassment, and li…
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Feb 24, 2020
Deep Dive 90 – The New Definition of WOTUS
The Trump Administration recently released its final rule defining “waters of the United States” under the Clean Water Act. This rule, called the “Navigable Waters Protection Rule” is the replacement for the repealed 2015 Clean Water Rule. For decades, the Environmental Protection Agency and the U.S. Army Corps of Engineers have struggled to define “waters of the United States” in a way that passes legal muster. Criticism has long-focused on the alleged overreach by the agencies, the vagueness of the definition, and a disrespect for the state role in addressing clean water as envisioned by Congress. However, many critics of the new EPA and Corps’ rule argue that it is too narrow and not properly based on science. Please join us as our experts discuss the history of the “waters of the United States” definition, explain the new rule and what waters would be regulated, and provide their insight and perspective on the impact of this major new rule.
Featuring:
- Dare…
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Feb 21, 2020
Deep Dive 89 – The New DOJ-USPTO-NIST Policy Statement on Remedies for Infringement of Standard-Essential Patents
In December 2019, the Department of Justice, the U.S. Patent & Trademark Office, and the National Institute of Standards issued a joint policy statement on the legal remedies that should be available for infringement of a valid patent on standardized technologies, known in patent law as standard-essential patents (SEP). The 2019 DOJ-USPTO-NIST policy statement replaces a 2013 policy statement on SEP remedies by the DOJ and USPTO that had been construed by some government officials and courts as asserting that a patent owner seeking or receiving an injunction for infringement of its SEP could violate the antitrust laws. The 2019 policy statement reaffirms that there are no special rules for owners of SEPs in receiving injunctions for ongoing infringement of their valid patents, and that when licensing negotiations fail, the full range of legal remedies for all patent owners should be available for owners of SEPs.
The 2019 policy statement is a significant development in the ongoing pol…
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Feb 19, 2020
Deep Dive 88 – The Whys and Hows of Commenting on Rules
Public notice and comment on rulemaking is a core requirement of the Administrative Procedure Act, and creates the administrative record on which any subsequent judicial review will be based. Yet many people (even people who take the trouble to vote) seem to think that commenting on rules is difficult or futile, and therefore don’t participate – even when they care about the outcome. This live podcast will discuss the practical mechanics of tracking the development of rules and filing timely comments; in fact, timely filing is about the only legal requirement for getting comments onto the record. It will describe the sorts of comments that tend to be effective in persuading an agency, including comments made directly by affected small entities without professional representation. It will also explain the concept of a “Public Interest Comment” which argues, not on behalf of any particular party or cause (however worthy), but in favor of a balanced resolution of the conflicti…
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Feb 18, 2020
Explainer 11 – GDPR Compliance and Cybersecurity Concerns
In this episode, Ashley Baker and Neil Chilson discuss the implications for data security under recently-enacted privacy laws. Although data privacy regulations may shield your data from companies that seek to use it for commercial purposes, certain legal requirements found in these regulations can leave your sensitive information vulnerable to bad actors. Strict data privacy rules such as California’s CCPA and the European Union’s GDPR may be exploited by hackers and others who wish to gain access to someone’s personal information. Baker and Chilson discuss data security considerations for privacy laws, the importance of defining and addressing consumer harms, and why lawmakers should prioritize cybersecurity over data privacy.
Featuring
- Ashley Baker, Director of Public Policy, The Committee for Justice
- Neil Chilson, Senior Research Fellow for Technology and Innovation at the Charles Koch Institute
Visit our website – www.RegProject.org – to learn more, view all of our…
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Feb 11, 2020
Deep Dive 87 – The Dubious Morality of Modern Administrative Law
This podcast features audio from a recent event held at the University of California, Berkeley, featuring the insights of Richard Epstein and Daniel Farber. Epstein and Farber go to the philosophical roots of administrative law in order to get to the heart of present-day debates.
Featuring:
- Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
- Daniel Farber, Sho Sato Professor of Law, Co-Director, Center for Law, Energy &, California-Berkeley Law
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Jan 28, 2020
Deep Dive 86 – Amazon's Case Against Trump
Amazon Web Services, Inc. (Amazon) has claimed in a lawsuit in the United States Court of Federal Claims that unlawful intervention by President Donald Trump deprived it of a $10 billion decade-long contract with the Department of Defense (DoD) for a cloud computing system known as the Joint Enterprise Defense Infrastructure (JEDI). Long considered the favorite, Amazon nevertheless lost the award to Microsoft Corp. in a competitive bidding process that Amazon claims was arbitrary and capricious and tainted by President Trump’s open feud with Amazon company founder Jeffrey Bezos.
Dan Kelly, Alexander Major and Franklin Turner, nationally recognized commentators and practitioners in the federal bid protest arena, unpack what we know about Amazon’s case, and discuss the possible grounds, laws and regulations governing mandates for competitive contracting by federal agencies.
Featuring:
- Alexander Major, Partner and Co-Leader of Government Contracts & Export Controls Practice Group…
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Jan 24, 2020
Deep Dive 85 – State Regulators and the Gig Economy
Gig-economy companies like Uber, Lyft, DoorDash, and others have disrupted sectors across the economy. They’ve done so in part by using new technology to tap a large pool of independent workers. This approach has not only proven to be a winning business model, it has also created a way back into the workforce for millions of people. Students, ex-offenders, single parents, and others excluded from traditional employment have found, in gig work, a new way to earn a living.
Despite this, gig companies have drawn fire from many quarters, including academics, labor unions, and most importantly state legislators. Some state legislators have proposed new regulations that, while potentially improving gig workers’ compensation and benefits, could threaten the very business models that allow for this independent work in the first place. Indeed, some states, most notably California, have even proposed converting all gig workers into traditional employees.
Alex MacDonald discusses their impl…
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Jan 21, 2020
Tech Roundup 7 – Driverless Cars and Artificial Intelligence
In this episode, Adam Thierer and Caleb Watney discuss the emerging questions surrounding the progress of driverless car technology and its regulation.
Featuring:
- Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
- Caleb Watney, Fellow, Technology and Innovation, R Street Institute
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Jan 10, 2020
Tech Roundup 6 – Constitutional Concerns about State Privacy Regulation
Do recent state privacy rules, like California's CCPA, impinge on free speech, violate the dormant commerce clause, or are they preempted by other federal laws? Ian Adams and Jennifer Huddleston discuss.
Featuring:
- Ian Adams, Vice President of Policy, TechFreedom
- Jennifer Huddleston, Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Dec 20, 2019
Explainer Episode 10 – Did Harvard Admissions Discriminate Against Asians?
In Students for Fair Admissions, Inc. v. Harvard, it is alleged that Harvard admissions discriminated against Asian applicants. In this episode, Pacific Legal Foundation attorney Wen Fa discusses the case, the legal context in which the case was brought, and the case’s potential implications.
Featuring:
Wen Fa, Attorney, Pacific Legal Foundation
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Dec 19, 2019
Deep Dive 84 – What's Next for Fannie, Freddie, and Housing Finance Reform?
The Federal Housing Finance Agency (FHFA) oversees the administration of both Freddie Mac and Fannie Mae. What's next for the agency? What are the priorities that the agency should be pursuing? This episode features remarks from FHFA Director Mark Calabria and a discussion of the issues with reform by our panelists.
Featuring:
- Mark Calabria, Director, Federal Housing Finance Agency
- Edward Pinto, Resident Fellow and Director, AEI Housing Center, American Enterprise Institute
- Peter Wallison, Senior Fellow, Arthur F. Burns Fellow in Financial Policy Studies, American Enterprise Institute
- [Moderator] Alex J. Pollock, Principal Deputy Director, Office of Financial Research, U.S. Department of Treasury
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Dec 17, 2019
Tech Roundup 5 – Section 230
In this episode, experts discuss Section 230 of the Communications Decency Act, which protects platforms from liability for the content produced by users. Some legislators have recently floated the idea of enforcing 'platform neutrality' in a way that, according to critics, threatens the sort of free speech Section 230 is meant to protect. The experts featured in this episode have a lively discussion on these and other topics.
Featuring:
- Diane Katz, Senior Research Fellow in Regulatory Policy, The Heritage Foundation
- Jeff Kosseff, Assistant Professor of Cybersecurity Law, United States Naval Academy
- [Moderator] Ashkhen Kazaryan, Director of Civil Liberties, TechFreedom
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Dec 12, 2019
Explainer 9 – Biometric Information Privacy Act
This episode explores the implications of private rights of action under laws like Illinois' Biometric Information Privacy Act. Are the parameters around these private rights of action too vague and susceptible to abuse? Experts discuss this question and more.
Featuring:
- Ashley Baker, Director of Public Policy, Committee for Justice
- Jennifer Huddleston, Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Dec 5, 2019
Explainer 8 – The Community Reinvestment Act
Passed in 1977, the Community Reinvestment Act (CRA) was intended to encourage banks and other financial institutions to lend to lower-income individuals in their communities. Has the CRA succeeded in this goal or is there room for improvement? Aaron Klein and Diego Zuluaga weigh in on this important question.
Featuring:
- Aaron Klein, Fellow in Economic Studies and Policy Director, Center on Regulation and Markets, Brookings Institution
- Diego Zuluaga, Policy Analyst, Center for Monetary and Financial Alternatives, Cato Institute
Additional Resources:
- "The Community Reinvestment Act in the Age of Fintech and Bank Competition" (https://www.cato.org/publications/policy-analysis/community-reinvestment-act-age-fintech-bank-competition)
- "Bank-like credit unions should follow bank rules" (https://www.brookings.edu/opinions/bank-like-credit-unions-should-follow-bank-rules/)
- "A tool meant to help minorities buy homes is instead speeding up gentrification in D.C." (https://www.washin…
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Nov 26, 2019
Deep Dive 83 – Medicare for All
In this episode, Roger Klein and Adam Broad debate the merits of the increasingly prominent "Medicare for All" proposal for healthcare. The discussion is moderated by Courtney Hughes.
Featuring:
- Roger Klein, Faculty Fellow, Center for Law, Science & Innovation at the Sandra Day O’Connor College of Law at Arizona State University
- Adam Broad, Organizer, Illinois Single Payer Coalition
- [Moderator] Courtney Hughes, Associate Professor, Northern Illinois University’s College of Health and Human Sciences
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Nov 18, 2019
Explainer Episode 7 – Carpenter v. United States
In this episode, Ashley Baker and Jennifer Huddleston discuss the implications of the famous privacy case, in which the Supreme Court decided that the warrant-less seizure of the plaintiff's cell phone records violated his Fourth Amendment rights.
Featuring:
Ashley Baker, Director of Public Policy, Committee for Justice
Jennifer Huddleston, Research Fellow, Mercatus Center, George Mason University
Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Nov 13, 2019
Explainer 6 – Regulating Biometric Access Technologies
With emerging debates around facial recognition technology, the issue of regulating biometric access technologies has become more prominent. San Francisco, notably, has banned government use of facial recognition, and states like Illinois and Texas have also begun more aggressive regulations on biometrics. The implications of these technologies for civil rights and the rules to limit their use are explored and explained in this podcast.
Featuring:
- Ashley Baker, Director of Public Policy, Committee for Justice
- Jennifer Huddleston, Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Nov 12, 2019
Deep Dive Episode 82 – A Preview of County of Maui, Hawaii v. Hawaii Wildlife Fund
The oral argument for County of Maui, Hawaii v. Hawaii Wildlife Fund was heard before the Supreme Court on November 6, 2019. The issue at hand is: "Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater." This teleforum previews the major issues of the case.
Featuring:
Brianne Gorod, Chief Counsel, Constitutional Accountability Center
Glenn E. Roper, Attorney, Pacific Legal Foundation
[Moderator] Prof. Donald Kochan, Parker S. Kennedy Professor in Law, Chapman University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Nov 8, 2019
Deep Dive 81 – Vertical Integration in Broadcasting: A Cause for Concern?
The broadcasting market used to be straightforward. It functioned on a linear model consisting of content companies, distribution channels and audiences. The advent of the internet disrupted that model, placing new competitive pressures on traditional players and forcing them to rethink their strategy.
Vertical integration – the common ownership or control of both programming and distribution undertakings – has been hailed as a useful strategy for legacy broadcasters to survive in the new digital environment. Regulators and the courts, to a large extent, have endorsed this rationale. Earlier this year, AT&T fended off an antitrust challenge to its merger with Time Warner, successfully claiming that the merger was necessary to take on platforms such as Netflix, Facebook and Google.
Has vertical integration succeeded in making the broadcasting sector more innovative and competitive? Are additional regulatory safeguards necessary to prevent and sanction anti-competitive conduct? Wha…
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Nov 5, 2019
Tech Roundup 4 – The Future of Drone Policy: A Discussion with Sen. Mike Lee
In this episode, Adam Thierer and Brent Skorup speak with Senator Mike Lee on the current state of drone regulation. The senator speaks to his proposal for a cooperative, federal solution to regulatory holdup in drone technology innovation.
Additional Resources:
Senator Lee's proposed Drone Integration and Zoning Act: https://www.lee.senate.gov/public/index.cfm/2019/10/sen-lee-introduces-drone-integration-and-zoning-act
Brent Skorup, "To Kickstart Drone Deliveries, Give Cities and States Regulatory Flexibility": https://www.mercatus.org/bridge/commentary/kickstart-drone-deliveries-give-cities-and-states-regulatory-flexibility
Featuring:
- Mike Lee, United States Senator, Utah
- Brent Skorup, Senior Research Fellow, Mercatus Center, George Mason University
- [Moderator] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Oct 31, 2019
Deep Dive Episode 79 – An Update on Gundy v. United States
Last term in Gundy v. U.S., without Justice Kavanaugh the Court was split between a restoration of a substantial limitation on the administrative state and the status quo. In this case, as Justice Gorsuch described it, Congress gave “the nation’s chief prosecutor… the power to write his own criminal code governing the lives of a half-million citizens.” This case has enormous implications for how much power federal bureaucrats can be given by Congress. The panelists will discuss this case and a potential future without such extensive power for federal agencies.
Featuring:
Devin Watkins, Attorney, Competitive Enterprise Institute
Moderator: Prof. Christopher J. Walker, Professor of Law, The Ohio State University Moritz College of Law
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Oct 31, 2019
Deep Dive 80 – New Executive Orders Directing Agency Guidance
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Oct 28, 2019
Deep Dive 78 – FTC’s 21st Century Hearings
With the conclusion of the Federal Trade Commission’s 21st Century Hearings, the agency is finalizing several reports concerning the state of competition in the US, vertical mergers, the consumer welfare standard, and privacy. This panel summarizes the issues the FTC explored in the hearings and discuss their views of potential FTC output.
Featuring:
- Maureen Ohlhausen, Partner, Baker Botts LLP and former FTC Acting Chairman
- Duane Pozza, Partner, Wiley Rein LLP
- Moderator: Svetlana Gans, Vice President and Associate General Counsel, NCTA — The Internet & Television Association
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Oct 24, 2019
Deep Dive 77 – Book Review: The Capitalism Paradox: How Cooperation Enables Free Market Competition
In this episode, Paul Rubin, the world’s leading expert on cooperative capitalism, discusses his new book, The Capitalism Paradox: How Cooperation Enables Free Market Competition. Rubin explains how we should think about markets, economics, and business and makes a case that this book is an indispensable tool for understanding and communicating the vast benefits the free market bestows upon societies and individuals. Moderator Susan Dudley's review of the book may be read here.
Featuring:
- Prof. Paul H. Rubin, Samuel Candler Dobbs Professor of Economics Emeritus, Emory University
- Moderator: Prof. Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Oct 23, 2019
Deep Dive Episode 76 – State-Sponsored Piracy? The Allen v. Cooper Case
What happens when a state agency uses without authorization copyrighted videos and pictures of Blackbeard’s famous pirate ship, the Queen Ann’s Revenge? Is this an act of state-sanctioned piracy for which the copyright owner can sue for the violation of his rights, or is the state immune from such a lawsuit under its inherent sovereign immunity? This is the question that the Supreme Court will answer in Allen v. Cooper, with oral arguments scheduled for November 5, 2019.
In this case, North Carolina argues that it is immune from any copyright infringement lawsuits given its state sovereign immunity under the 11th Amendment. Rick Allen maintains in his lawsuit that North Carolina is liable for its unauthorized use of his video footage and photographs of the Queen Ann’s Revenge given that Congress validly abrogated the state’s sovereign immunity in the Copyright Remedy Clarification Act (CRCA). In Allen v. Cooper, the Supreme Court will determine whether the CRCA was a valid stat…
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Oct 22, 2019
Deep Dive 75 – Spectrum Wars
With the advent of mobile devices, ubiquitous home laptop, tablet and iPad computers, content streaming and more, the need for wireless service is forever on the rise in the United States. Industry experts note that capacity limits are being stretched. With the arrival of the "Internet of Things," linking the internet with everything from nanny cams to home/office climate systems to autonomous vehicles, is there a clear and coherent path forward on the assignment or repurposing of spectrum? Perhaps as importantly, who has the authority and expertise to decide?
Featuring:
- Dean Brenner, Senior Vice President, Spectrum Strategy & Technology Policy at Qualcomm
- Hilary Cain, Director (Group Manager), Technology and Innovation Policy, Toyota North America
- Danielle Piñeres, Vice President & Associate General Counsel, NCTA- The Internet & Television Association
- [Moderator] Prof. Christopher J. Walker, Professor of Law, The Ohio State University Moritz College of Law
Visit our website…
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Oct 17, 2019
Deep Dive 74 – A Discussion on Current Department of Labor Priorities
The Department of Labor administers and enforces more than 180 federal laws, with mandates and regulations that affect workplace activities for about 10 million employers and 125 million workers. Since its creation in 1913, DOL has been in the vanguard of the regulatory state.
This episode, moderated by former Solicitor of Labor Gregory Jacob, features a discussion with Cheryl Stanton, head of DOL’s Wage and Hour Division, and Jonathan Berry, head of its regulatory policy shop, about how President Trump’s Department of Labor is stewarding the responsibilities that have been entrusted to its care.
Featuring:
- Jonathan Berry, Principal Deputy Assistant Secretary for Policy, U.S. Department of Labor
- Cheryl M. Stanton, Administrator, Wage and Hour Division, U.S. Department of Labor
- [Moderator] Gregory Jacob, Partner, O'Melveny & Myers LLP
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Oct 15, 2019
Deep Dive 73 – Balancing Federal and State Authority in Energy Policy
In statutes such as the Federal Power Act and Clean Water Act, Congress divided responsibility for oversight of energy generation and transmission projects between federal agencies and the States. In recent years, several States have more aggressively used their perceived statutory and regulatory authority in furtherance of climate change goals, prompting litigation from affected parties and regulatory pushback from the Trump Administration. Our experts will discuss the most recent legal and regulatory skirmishes over the balancing of federal and state jurisdiction over energy policy, including: Judicial rejection of extended consideration of Section 401 certification requests; EPA proposed Clean Water Act regulations; State subsidies for power generation plants and renewable power mandates; and, State-issued rights of first refusal to incumbent utilities to build transmission lines.
Featuring:
- Gordon A. Coffee, Partner, Winston & Strawn LLP
- Prof. Ari Peskoe, Lecturer on Law, Ha…
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Oct 10, 2019
Deep Dive 72 – The Net Neutrality Saga: Mozilla v. FCC
Earlier in October, the D.C. Circuit issued its long-awaited opinion in Mozilla v. Federal Communications Commission in which the court largely upheld the Commission’s 2017 Restoring Internet Freedom Order that reversed the Obama Administration’s 2015 decision to apply common carrier regulation to the Internet. While the court upheld the bulk of the agency’s actions as reasonable under the Supreme Court’s rulings in Chevron and Brand X, the court also found that the agency lacked plenary preemption authority over state efforts to regulate the Internet under the FCC’s theory of the case. As such, this case does not mark the end of the net neutrality debate; instead, it simply closes one chapter and opens a new one.
In this episode, a panel of legal and economic experts share their views of the court’s reasoning and of the implications of this case upon the on-going net neutrality debate.
Featuring:
- Russell P. Hanser, Partner, Wilkinson Barker Knauer, LLP
- Prof. Daniel…
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Oct 8, 2019
Tech Roundup 3 – The Download on California's New Privacy Proposal
This podcast features a fascinating back-and-forth on the implications of new amendments to California's privacy law, CCPA (California Consumer Privacy Act). Is California setting the law of the land? How will the FTC respond? What will this mean for interstate online commerce? These and other questions are explored in the episode.
Featuring:
- Ian Adams, Vice President of Policy, TechFreedom
- Joseph Jerome, Policy Counsel, Privacy & Data, Center for Democracy & Technology
- [Moderator] Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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Oct 7, 2019
Deep Dive 71 – Accounting for Race 101: Virg